CHRISTOPHER J ANTIPOREK, Employee

CLEAN AIR SERVICE INC, Employer

An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

The employee filed an unemployment benefit claim in June 2001, and a determination was issued finding that in week 23 of 2001, the employee was discharged for misconduct connected with the employee's work. As a result benefits were denied.

The employee timely appealed from that determination and a hearing was set for August 21, 2001, to be held at a departmental hearing site in Wausau, Wisconsin. A notice of that hearing was sent to the employee and the employer on August 3, 2001.

At the scheduled hearing time, the employee appeared and the employer did not appear. A hearing was held and testimony was taken from the employee. On August 31, 2001, an appeal tribunal decision was issued amending and reversing the initial determination and finding that the employee was eligible for benefits as of week 23 of 2001. Thereafter, the employer wrote a letter to the hearing office and explained the reason for the employer's nonappearance. Another hearing was scheduled to determine whether the employer had good cause for failing to appear at the hearing scheduled for August 21, 2001.

The issue to be decided is whether the employer had good cause for the failure to appear at the hearing scheduled for August 21, 2001.

The ALJ took administrative notice of a departmental Form A (Confirmation of Timely Appeal) in the hearing file dated July 19, 2001, after the employee filed his appeal to the initial determination. The standard form was sent to the parties and informed them that they should tell the hearing office of days they would not be able to appear at the hearing. The file does not indicate that the hearing office was advised of any dates of unavailability for the employer's witnesses prior to the hearing notice being sent out on August 3, 2000.

The owner testified that when he received the hearing notice he had just finalized plans for a family vacation in Canada. He called the hearing office on August 7, 2001, to request a postponement, but his request was denied. Department records confirm his request and the denial of the request. However, the employer was informed that if he could not make it he should write up a letter explaining the situation and documents sent by the employer would be sufficient. The owner was told it would be fine to use documents as exhibits during the hearing. The owner asked if his attorney should represent the employer at the hearing and was told this would not be necessary. He was told that all he would need to do was submit a letter as to the reason he could not make the hearing. This advice can be taken two ways. It can be taken to mean that if the employer sends in an explanation, and documentation, it will be likely that a further hearing on the merits would be held. There was no warning that unless the explanation was considered to establish good cause for failing to appear, the employer would not be allowed the opportunity to present evidence. The comment could also mean that the employer need not appear at the hearing, but that documentation would be allowed in lieu of firsthand testimony. That a worker at the hearing office would say such a thing seems unlikely, however, documentation of phone calls indicates that on August 20, 2001, possible exhibits were received from the employer and that the hearing office made every effort to get those exhibits to the ALJ prior to the hearing. This suggests that it is possible that the employer was told that he need not appear if he sent in documentation. More importantly, the employer's testimony in this regard was undisputed.

The employer also testified that an expensive piece of robotic equipment broke down prior to the hearing and that it was necessary to return it to the manufacturer located in Canada to have it repaired. He stated that due to problems with Customs officials in sending the equipment through the mail, it was necessary for him to personally deliver the item to the manufacturer in Canada. He said that he could not deliver the item prior to the week that the hearing was scheduled due to the press of business, but that he was able to coordinate the delivery with his vacation plans. He stated that he crossed the Canadian border on August 20, 2001, mailed the item to the manufacturer from a location in Canada that day, continued on to his vacation and picked the item up on August 24, 2001, from a location in Canada while on his way home.

The commission agrees with the conclusion of the ALJ that the employer's vacation does not amount to good cause for failing to appear at the hearing. However, the employer did request a postponement and argues that it was misled by the hearing office. Based on the owner's testimony, there was some justification to the owner's belief that documents could take the place of firsthand testimony. Under these circumstances, the commission finds that the employer has established good cause for failing to appear at the hearing.

The commission therefore finds that the employer/respondent failed to appear at a hearing held on August 21, 2001, but that it had good cause for such failure, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code § 140.

The decision of the administrative law judge is reversed. Accordingly, the appeal tribunal decision issued on November 23, 2001, is reversed and the appeal tribunal decision of August 31, 2001, is set aside. This matter is remanded for a hearing on the merits.

Dated and mailed February 15, 2002
antipch2 . urr : 145 : 1  PC 712.6

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ prior to reversing. The commission does not reverse as the result of a different assessment of witness credibility and demeanor but because it concluded that what the employer was told by the hearing office gave the employer good cause for failing to appear.

Note: The commission's Order is set forth here as it was affected by a corrective amendment made on February 21, 2002.

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