Original Proceeding in this Court

Attorneys:
John Preston Creer, Salt Lake City, for Petitioner
Lorin R. Blauer, Salt Lake City, for Respondent

Before Judges Davis, Billings, and Greenwood.

DAVIS, Presiding Judge:

This is a petition for review of a decision by the Workforce Appeals Board (the Board) of the Department of Workforce Services (the Department), affirming the Department's decision finding Glazier's Foodtown (petitioner) liable for its pro-rata share of unemployment benefit costs to be paid to its former employee. We affirm.

The Department initially determined that the employee was eligible for unemployment benefits because the reason for his discharge did not eliminate petitioner's responsibility to pay. Petitioner subsequently appealed to the Department's Appeals Section where the matter was heard by an Administrative Law Judge (the ALJ). The ALJ ruled that petitioner had not established just cause for the employee's termination. Petitioner appealed that decision to the Board. The Board then adopted the ALJ's findings and conclusions of law and affirmed the ALJ's decision. Petitioner now seeks this court's review of that decision.

Petitioner submits for the first time on petition for writ of review that its due process rights were violated at the hearing before the ALJ because it did not have the opportunity to cross-examine the terminated employee. "As a general rule, objections or questions which have not been raised or urged in the proceedings before the administrative agency will not be considered by the court on review of the order of such agency." D.B. v. Division of Occupational Prof'l Licensing, 779 P.2d 1145, 1148 (Utah Ct. App. 1989). Nevertheless, we are not precluded from reviewing issues for the first time in cases of plain error affecting the substantial rights of a party. See id.; see also Utah R. Evid. 103(d). In the present case however, petitioner's substantial rights were not affected. The record shows that petitioner responded at length to the employee's assertions, both before the ALJ and in its appeal to the Board. In the context of the whole proceeding, there is no indication that the employee's testimony elicited on cross-examination would have had any impact on the proceeding as a whole. See Kelson v. Salt Lake County, 784 P.2d 1152, 1157 (Utah 1989).

In the absence of plain error, it is still possible for this court to find grounds for reversal of an agency decision. Section 63-46b-16(4) of the Utah Code provides, in pertinent part, that an

appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by . . . the following:

(e) the agency has engaged in an unlawful procedure or decision-making process . . . ;

. . . .

(g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court . . . .

In the event that petitioner had properly preserved its due process claim for this court, its argument would still fail. Petitioner claims it was deprived of due process because the terminated employee was unavailable for cross-examination at the hearing before the ALJ. However, there is no evidence in the record that petitioner attempted to have the employee subpoenaed or otherwise made any effort to obtain his testimony. As the employer, it was petitioner's responsibility to gather evidence, subpoena witnesses, and furnish the ALJ with an adequate record upon which to base his decision.

The employer has the burden of proof which is the responsibility to establish the facts resulting in the discharge. The employer is required by Section 35A-4-313 to keep accurate records and to provide correct information to the Department for proper administration of the Act. Although the employer has the burden to establish just cause for the discharge, if sufficient facts are obtained from the claimant, a decision will be made based on the information available.

Petitioner also claims that the ALJ's decision was not supported by substantial evidence as required by section 63-46b-16(4)(g) of the Utah Code. This court has defined substantial evidence as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Grace Drilling Co. v. Board of Review, 776 P.2d 63, 68 (Utah Ct. App. 1989) (citation and quotation marks omitted). The Board properly held that a showing of just cause requires an employer to establish that the employee's conduct showed: 1) culpability, 2) knowledge of expected conduct, and 3) the offending conduct was within the employee's control. See Utah Admin. Code R994-405-202(1) (Supp. Oct. 1, 1997). "The failure to establish even one of the three factors is fatal to [petitioner's] claim that [the employee] was terminated for 'just cause' and therefore not entitled to unemployment compensation benefits." Pro-Benefit Staffing, Inc. v. Board of Review, 775 P.2d 439, 442-43 (Utah Ct. App. 1989). The Board determined that petitioner failed to meet its burden regarding the "control" factor and was therefore ineligible for relief of charges. In light of the record before us and in the absence of any competent evidence showing that the offending conduct was within the employee's control, we hold that the Board's decision was "supported by substantial evidence when viewed in light of the whole record before the court." Utah Code Ann. 63-46b-16(4)(g) (1997).

Affirmed.
 

______________________________
James Z. Davis, Presiding Judge

WE CONCUR:
 

______________________________
Judith M. Billings, Judge
 

______________________________
Pamela T. Greenwood, Judge