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


Subject: Heavenly Angels Childcare & Community Center, Inc. v. LIRC and Alonzo Weathers, Case 03-CV-08440 (Wis. Cir. Ct., Milwaukee Co., February 12, 2004)

Digest Codes: PC 734

The employee, a van driver for a child care center, was discharged based on allegations he used the employer's gas credit card to put gas in a vehicle other than the van he was assigned to drive. The LID found no misconduct, and an ALJ and then LIRC agreed, concluding that the employer had failed to show by clear and convincing evidence that the employee had misappropriated employer-purchased gas as alleged. On appeal to court, the employer argued that the evidence it had presented – in which it relied largely on statements from some young children who had been in the van – was sufficient. In the alternative, the employer argued that LIRC erred in refusing to allow it further hearing to present evidence of another employee of the employer who had not been present at the hearing.

Held: Affirmed. LIRC's findings supported its decision of no misconduct and were supported by the substantial and credible testimony of the employee that he did not put gas into other vehicles. LIRC considered that testimony more credible than the testimony of the children, who were unable to provide certain details. Weight and credibility of testimony are for LIRC. As to the request for further hearing, the decision not to re-open a hearing can be overturned only if it is "a flagrant abuse of discretion". Here, the employer failed to request that the hearing be re-opened for the additional evidence until after the ALJ and LIRC had ruled against it, the employer did not state what relevant testimony the witness would present if allowed, and did not explain why the outcome would differ if the testimony were considered. There was no abuse of discretion in refusing to re-open the matter for the presentation of further evidence.


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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