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


ROBERT M MAINOCK, Employe

LEAR MIDWEST AUTOMOTIVE LTD PTR, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99001940JV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employe is eligible for benefits, if otherwise qualified.

Dated and mailed December 22, 1999
mainoro.usd : 132 : 1 PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which found that the employer did not establish that the employe's suspension was a disciplinary action for good cause connected with his work. The employer's only witness had no firsthand knowledge of the incident that led to the employe's suspension. The employe did not come to the hearing to provide evidence to support the employer's case. The written document, while it can be admitted, is hearsay to the extent that it sets forth the supervisor's alleged observation of the employe leaving his work area. It is not even clear from the document that the supervisor who signed the document actually saw the employe walk away from his work area.

The employer's attorney argues in the petition that because the administrative law judge allowed the hearsay into evidence, any objection is waived. However, Wis. Admin. Code § DWD 140.16(1), specifically provides that hearsay testimony is admissible, but no issue may be decided based solely on hearsay. The only evidence the employer offered to establish that it had good cause to suspend the employe's employment was hearsay evidence. Accordingly, the administrative law judge could not deny benefits based on such evidence. For these reasons, and for the reasons set forth in the appeal tribunal decision, the commission affirms that decision.

cc: LEAR MIDWEST AUTOMOTIVE LTD PTR
C/O THE FRICK CO

LEAR SEATING

ATTORNEY WILLIAM EHRKE
CRIVELLO CARLSON MENTKOWSKI STEEVES


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