STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

TYRA R COLEMAN, Employee

UNITED RETAIL INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02607460RC


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 agrees with the decision of the ALJ, and it adopts the decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the request for hearing is dismissed and the department's initial determination remains in effect.

Dated and mailed March 7, 2003
colemty . usd : 115 : aty   PC 712.5

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner


MEMORANDUM OPINION

Here, the employer failed to appear at the hearing because its primary witness had a scheduling conflict and its request for postponement on that basis had been denied.

The standard for failing to appear at a hearing is "good cause." This is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998)

Wis. Adm. Code § DWD 140.08, states as follows, in relevant part:

(1) A party who requests a postponement of a hearing shall make the request known to the hearing office as soon as the party becomes aware that a postponement is necessary. Unreasonable delay in requesting a postponement may be the basis for denial of the request.

(2) No postponements may be granted for the mere convenience of a party. All parties are expected to arrange time off from their everyday affairs, including management duties, work and school, to attend hearings. The hearing office or the administrative law judge scheduled to conduct the hearing may grant a postponement only for an exceptional reason. An exceptional reason may include circumstances such as the following:

*      *      *      *      *
(e) A business meeting of a necessary witness which was scheduled prior to receipt of the hearing notice and which cannot be re-scheduled.

The employer acknowledges that the manager's attendance at the grand opening of the store constituted a "pre-engagement." It would have to be assumed, given the nature of grand openings, that this "pre-engagement" had been scheduled well in advance of the date of the hearing. Despite this fact, as well as the fact that the parties had been reminded in several different mailings from the department of the importance of providing dates of possible conflict and of prompt presentation of postponement requests, the employer waited until the day before hearing to request a postponement.

Under these facts, where the grand opening was not scheduled upon short notice (see, Gillon v. Hondo Inc. UI Hearing No. 00603849MW (LIRC Aug. 25, 2000), Young v. First Healthcare Corp. UI Hearing No. 98605515MW (LIRC Dec. 9. 1998)); where the manager was not the only individual who could have testified (the employer indicated in its postponement request that it had been looking for hearing substitutes for the manager) (see, Servi v. General Nutrition Corp. UI Hearing No. 98600105MW (LIRC April 24, 1998); where the employer had been reminded several times of its scheduling/postponement request obligations (see, Gillon, supra); and where the postponement request was presented the day before hearing (see, Wis. Adm. Code § 140.08(2)(e)), good cause has not been shown and the request for hearing should be dismissed.

cc: United Retail Incorporated DBA Ave (Rochelle Park, New Jersey)

 


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