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


JUDITH A YOUNG, Employe

FLEX-STAFF TEMPORARY SERV - APPLET, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00401782AP


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 20 of 2000, if otherwise qualified.

Dated and mailed September 8, 2000
youngju.usd : 135 : 2  PC 714.02  PC 714.07

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

In its petition for commission review, the employer contends that its witness testified under oath as the custodian of records that an offer of work was made and that his testimony was not deemed credible by the ALJ. The employer contends that it did not expect to be blind sided by the false testimony from the employe who claimed that the offer was never made. While this case ultimately revolves around credibility, the ALJ noted that the computer printout record constituted hearsay and consequently no competent evidence was offered that the employe was offered employment on May 12.

The employer was provided with a notice of hearing and a pamphlet on attending a UI hearing. The department makes it explicitly clear that persons possessing firsthand knowledge are necessary and cannot be replaced by documentation or signed statements in lieu of testimony. The only firsthand evidence in this record regarding the offer of work comes from the employe. While the computer printout may be admissible under a hearsay exception found at Wis. Stat. § 908.03(6), the document proves at best that an offer of work was entered into the computer not that one was made or received by the employe. The commission is therefore unwilling to conclude that the employer established with sufficient competent evidence that an offer of proof was made or received by the employe. Relying instead on the credibility of the employe's testimony, the commission defers to the ALJ's credibility determination. Consequently, the employment relationship did end as a discharge when the employer failed to offer the employe subsequent assignments. The discharge therefore was not for misconduct connect with the employe's employment.


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