STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)


JERRY WILLIS, Employe

CITY OF MILWAUKEE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602015MW


ORDER

Pursuant to authority granted in Wis. Stat. § 108.09(6), the Labor and Industry Review Commission hereby sets aside the appeal tribunal decision in the above-referenced matter and remands this matter back to Administrative Law Judge John Winderl for further hearing and a new decision.

Dated and mailed November 24, 1999
willije.usd : 132 : 1   PC 714.06  PC 715

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The administrative law judge is required to issue a decision on the employe's eligibility for benefits whether or not the employe's employing unit questions the employe's eligibility. Wis. Stat. § 108.04(13)(a). Once testimony has been presented and exhibits received into the record, the administrative law judge cannot permit withdrawal of such testimony or exhibits. The employer is not the appellant in this matter. The ALJ must determine the employe's eligibility for benefits based on testimony presented at the hearing. While the employer can withdraw any exhibits not actually received into the record, just as they can be withdrawn throughout any hearing, once received they are a permanent part of the record. Further hearing is necessary to give the employe a chance to present oral and written testimony. Of course, all rights to examination, cross-examination and to offer rebuttal testimony apply. If the ALJ determines that the employe's discharge was for misconduct connected with his work, a decision must also be made by this or another ALJ as to whether benefits paid to the employe were the result of department error.

cc: ATTORNEY TIM HAWKES
SCHNEIDMAN MYERS DOWLING

DONALD SCHRIEFER
ASSISTANT CITY ATTORNEY

GREG FRIGO DIRECTOR
BUREAU OF LEGAL AFFAIRS


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