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


EDWARD G JONES, Employe

FRANCISCAN CARE & REHABILITATION CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99401402AP


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 beginning in week 22 of 1999, if otherwise qualified.

Dated and mailed February 17, 2000
jonesed.usd : 145 : 1   PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner



MEMORANDUM OPINION

In its petition for commission review the employer asserts that it submitted evidence and testimony to support the initial determination which found the employe's discharge was for misconduct connected with his work. The employer asserts that it presented evidence of progressive discipline which led to the employe's termination. The employer further asserts that where the employer maintains a system of progressive discipline, and the employe is discharged for violations of policy after warning, the employer has essentially established that the discharge was for misconduct. Had the employer established that the employe committed the infractions for which he was discharged, the employer may well have established that the employe's discharge was for misconduct. However, in this case, the employer merely established that the employe had been warned in accordance with its policy. The only situation for which the employer presented firsthand evidence was the April 12, 1999 incident. However, after considering the testimony presented, the ALJ believed that this incident was merely the result of a misunderstanding.

The employer asserts that it should not have to bring witnesses for every event to the hearing, because this would necessitate four or five witnesses. Ms. Fitzpatrick was able to provide firsthand testimony about the April 12 incident. Three of the other incidents involved the employe and a co-worker named Melanie. Two of those also involved a co-worker named April. Since Ms. Fitzpatrick was at the hearing, the employer would have needed to produce the testimony of only one witness to present its side of four of the incidents. The employer could have also produced the testimony of Ms. Carpenter, who witnessed the final incident. Had it done so it may have been able to substantiate its claim that the employe's alleged poor behavior continued after warning. However, the employer presented firsthand testimony only about the April 12 incident, and therefore failed to demonstrate that the employe's discharge was for misconduct connected with his work.

The employer suggests that the hearsay statements, being records of regularly conducted activity, should be excepted from the hearsay rule. The commission does not consider statements about the employe's behavior to be records of regularly conducted activity. The commission might consider attendance records, or other records which might demonstrate some degree of trustworthiness, business records. However, in this case, the complaints against the employe were made by a few people, in particular one who was involved in an interchange with the employe for which she was disciplined. Further, assessing whether a co-worker was rude is to some extent a subjective thing, and the commission believes it is important to give the ALJ the opportunity to see or, in the case of a phone hearing, to hear the testimony of the witnesses involved.

The employer further asserts that the credibility of the employe was impeached, by his refusal to answer a particular question. The ALJ found the employe to be a credible witness, and after reviewing the record, and discussing witness credibility with the ALJ, the commission sees no reason to disagree with her credibility determination. However, even if that were not the case, the employer still has to establish that the employe was rude or insubordinate. This the employer failed to do.

Finally the employer, in its reply brief, points out that the employe has raised new issues in his brief which are irrelevant. The commission agrees that many points raised by the employe are not germane or new, and it will not consider those points.

cc: DAVID SIER
ST ELIZABETH HOSPITAL

ATTORNEY JOHN E THIEL
GODFREY & KAHN


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