Section 23 Evidence

• Library: Employer-Employee Law 2008

Evidence at a hearing consists of sworn testimony and properly authenticated documents and exhibits. Section 288.190.2, RSMo Supp. 2007, directs the appeals tribunal to include in the record and consider as evidence all records of the Division that are material to the issues. By statute and regulation, appeals are heard without regard to the common law and statutory rules of evidence or other technical rules of procedure. 8 C.S.R. § 10-5.015(10)(B)4. But any decision must be supported by competent and substantial evidence. Mo. Const. art. V, § 18. The practical effect is that incompetent evidence is admissible, but standing alone it will not ordinarily support a finding of fact. But self-serving and hearsay statements, when not objected to, may support a finding. Bussmann Mfg. Co. v. Indus. Comm’n of Mo., 327 S.W.2d 487 (Mo. App. E.D. 1959).

At the hearing, a party should present witnesses who have personal knowledge of the facts. Subpoenas will be issued upon a showing that a witness is necessary and will not attend voluntarily. Section 288.230.1, RSMo 2000; 8 C.S.R. § 10-5.015(8). Witnesses subpoenaed for a hearing are entitled to fees in the same amount as paid in a civil action. Payment comes from the Unemployment Compensation Administration Fund. Parties to a case are not entitled to fees.

The following cases address a variety of evidence questions:

• Wilson v. Labor & Indus. Relations Comm’n, 573 S.W.2d 118 (Mo. App. W.D. 1978) (hearsay)

• Jennings v. Labor & Indus. Relations Comm’n, 579 S.W.2d 845 (Mo. App. W.D. 1979) (credibility finding may be required)

• Mark Twain Homes, Inc. v. Labor & Indus. Relations Comm’n, 616 S.W.2d 145 (Mo. App. E.D. 1981) (unobjected-to hearsay)
• Husky Corp. v. Labor & Indus. Relations Comm’n, 628 S.W.2d 378 (Mo. App. E.D. 1982) (Commission is trier of fact)

• Mark Twain Manor Homes, Inc. v. Labor & Indus. Relations Comm’n, Div. of Employment Sec., 631 S.W.2d 72 (Mo. App. E.D. 1982) (Commission is trier of fact)

• Hanks v. Labor & Indus. Relations Comm’n, 639 S.W.2d 252 (Mo. App. W.D. 1982) (referee’s active participation in hearing did not show partiality)

• Mead Prods., Div. of Mead Corp. v. Indus. Comm’n of...