Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance
Subject: Gerard Lawler v. LIRC, Department of Labor, Industry and Human Relations (sic), and Essential Industries, Inc. (Hrg. No. 95604354WK), Case 98-CV-1366 (Wis. Cir. Ct., Waukesha Co., May 21, 1999)
Digest Codes: MC 610.10 PC 714.12 PC 717
The employe was discharged when he made threats to accuse his employer of various environmental and safety violations, and indicated that he would not make those accusations if the employer paid him $74,000. He claimed that this was simply a settlement offer he made to his employer to settle a dispute over his employment. The employer consider it an attempt at blackmail, and fired him. The Initial Determination and Appeal Tribunal Decision both held that he had been discharged for misconduct.
The employe timely appealed to LIRC, but the department lost his appeal. It was discovered over 2 years later, and the appeal was processed at that time.
The employe argued that he was improperly denied a postponement of the hearing to give him time to find an attorney, that he was improperly denied the opportunity to present testimony from 2 witnesses who he had subpoenaed to the hearing, and that he was prejudiced by the delay in the processing of his appeal. He also argued that he was not trying to blackmail his employer, and that he was fired for another reason altogether (allegations untrue, he asserted that he had engaged in safety violations, and insubordination), and not for misconduct. LIRC affirmed the denial of benefits, and he appealed, making the same arguments to the court.
Held: Affirmed. The employe was given the statutorily-required notice of the hearing, and lack of counsel is not among the reasons described in the departments rules for granting a postponement. The evidence which the employe wished to offer through the witnesses in question was not relevant to the issues raised by the employers theory as to why it discharged the employe. The burden of proving misconduct is on the employer, therefore it had the burden of proving the reasons it asserted; the employe did not need to rebut reasons for discharge which were not being argued by the employer. The delay in processing of the appeal was not prejudicial; because LIRCs review is on the existing record, and the employe had no right to present further evidence, any loss of recollection by witnesses was not relevant. Finally, the commissions decision on the misconduct issue was proper.
Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.
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