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


Subject: Pizza Shuttle, Inc.  v. LIRC and Nathaniel White, Case No. 09 CV 3169 (Wis. Cir. Ct., Milwaukee Co., September 9, 2009)

Digest Codes: PC 714.02 - Evidence, Records of Regularly Conducted Activity ("Regular Business Activity"); PC 714.07 - Evidence, Hearsay;  PC 717 - Hearing, Continuance

The employee worked as a dishwasher for the employer restaurant. The employer's owner discharged the employee because a co-worker told the owner that he (the co-worker) had seen the employee harass a co-worker by grabbing her ass.

Before unemployment hearings, parties receive the Department of Workforce Development pamphlet “Attending an Unemployment Insurance Hearing,” in which parties are instructed that they should bring witnesses with personal, firsthand knowledge to the hearing and that they (the parties) should not expect to submit written statements of witnesses who are not present at the hearing. The employer's sole representative at hearing, its purchasing manager, nonetheless had as evidence of the employee's alleged wrongdoing no testimony from witnesses, but only: 1. a handwritten statement from the employer's owner reciting what the co-worker and the alleged victim had told him; and 2. unsigned statements typed by the employer's secretary, purporting to be what the co-worker and the alleged victim had told the secretary to type. The administrative law judge (properly) refused to take the unsigned statements into evidence, on the ground that their not being signed made them unreliable. At the end of the hearing, the administrative law judge asked the purchasing manager whether he had further evidence he wished to present at that time; the purchasing manager said he did not, but that if the administrative law judge was interested in hearing from other people, he could make arrangements for the administrative law judge to hear from them. The administrative law judge told the purchasing manager that the time for the employer to have made those arrangements was the hearing, and so denied the employer's implicit request for a continuance.

The commission held that the employer failed in its burden of proof, because all of its evidence of wrongdoing by the employee was hearsay and, by operation of Wis. Admin. Code § DWD 140.16(1), no issue may be decided solely on hearsay evidence. The commission also denied the employer's request for further hearing, reasoning that the employer had only itself to blame for its failure of proof.

Held: AFFIRMED. The court gave great weight deference to the commission's conclusion of no misconduct, reasoning that the commission has significant expertise in interpreting the misconduct statute. The court also gave great weight deference to the commission's conclusions of law regarding the evidentiary issues, reasoning that, because the commission conducts numerous reviews each year, it has significant expertise in applying Wis. Admin. Code § DWD 140.16 and other evidentiary statutes. The court rejected the employer's argument that the hearsay statements the employer had at hearing were admissible as records of a regularly conducted business activity pursuant to Wis. Stat. § 908.03(6), reasoning that the employer provided no evidence that the statements were part of its regular business activities. The court also rejected the employer's contention that the commission abused its discretion in failing to order further hearing. The employer received a pamphlet explicitly stating what kind of evidence was necessary, so the commission's denial of further proceedings was neither unreasonable, arbitrary, nor an abuse of discretion.


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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