Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject: Prime Lending Inc. v. LIRC and Jacalyn Margittay, Case 02-CV-184 (Wis. Cir. Ct., Door Co., April 7, 2003)

Digest Codes:  MC 691   PC 729 

The employee was discharged after the employer received an invoice for personal items the employee had ordered listing the employer as the ordering party. In addition, the employer asserted that the decision to discharge was also based on the employee's alleged giving of unauthorized discounts, unauthorized telephone and internet use, and falsifying time records. The Initial Determination found misconduct, but the ALJ reversed, finding that the employee's practice of ordering personal goods on the employer's account and then repaying the employer after invoices came, was known and accepted in the office, and that the employee believed it was authorized. The ALJ also found that the other reasons asserted by the employer were not in fact any significant part of its reasons for the discharge decision. LIRC affirmed the ALJ's decision of no misconduct. 

On appeal, the employer challenged the adequacy of the support in the record for the findings. It also asserted that the ALJ had denied it a fair hearing, by acting as an advocate for the employee in the questioning of witnesses.

Held: Affirmed. There is sufficient evidence in the record to support the findings that the employee had received permission to do this kind of ordering in the past and that she believed her conduct was acceptable to the employer. The findings as to her subjective intent and motivation are supported by the record. The record also contains adequate support for the finding that the other asserted reasons for the discharge were not real reasons for the discharge decision. As to the claim of denial of a fair hearing, the Court notes that the ALJ may not act as an advocate for a party, but does have the right to develop the facts and to call and examine witnesses as deemed necessary. Based on listening to the hearing tapes in order to assess the ALJ's demeanor and approach (as requested by the employer), the Court concludes that, while the ALJ's questioning was probing and not always consistent with the employer's positions, it was not unprofessional, one-sided or improper.


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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