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

FELICIA K KINKEAD, Employee

PILOT TRAVEL CENTERS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02611275RC


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 findings and conclusion in that decision as its own.

DECISION

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

Dated and mailed April 10, 2003
kinkefe . usd : 115 : 1   PC 712.5 

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ James T. Flynn, Commissioner

MEMORANDUM OPINION

An initial determination (LID) was issued December 2, 2002, allowing benefits. The file indicates that, although the employer was allowed the opportunity to provide information, it failed to do so. The LID contained instructions on filing an appeal and stated in these instructions that an appealing party should "provide . . . dates when you, your attorney, agent, or witness(es) are not available for a hearing as postponements cannot always be granted."

The employer appealed the LID, and the department, on December 23, 2002, mailed a confirmation that the appeal had been received. This confirmation stated that, "It is the responsibility of the participants to arrange time off from their everyday affairs, including management duties, work, . . .etc. However, if you, your representative and/or witnesses may not be available for a hearing in the next few weeks, please notify the hearing office immediately of those dates."

A notice of hearing was mailed to the parties on February 1, 2003, indicating that the hearing had been scheduled for February 12, 2003, at 2:00 p.m. This notice of hearing stated that, "Postponements are not granted for mere the convenience of the parties, their representatives, or witness(es). All participants are expected to arrange time off from everyday affairs, including management duties, work, . . .etc."

The employer did not contact the department or appear for the hearing, and the ALJ issued a dismissal order on February 13, 2003.

In correspondence postmarked March 6, 2003, the employer filed a timely petition for commission review. In this petition, the employer's representative presents the following basis for the appeal:

The employer with first hand testimony was unable to participate in the hearing because his store was understaffed the day of the hearing, and his absence from the store would cause a hardship for the company.

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)

The employer failed to appear at the hearing here because its primary witness was busy at work. Despite numerous cautions in mailings from the department, the employer failed to arrange its schedule or its business affairs in a manner that would have permitted its witness to attend the scheduled hearing. Not only that, but, when it became apparent that its witness would be not be attending the hearing, it failed to contact the department to request a postponement or to request some other accommodation of its scheduling problem, e.g., taking the witness's testimony by phone.

In Daly v. APAC Teleservices Inc., UI Hearing 98202044LX (LIRC March 31, 1999), where the employee did not appear at hearing because she couldn't get time off from her new job, the commission dismissed the employee's request for hearing. The commission held that the employee had not shown good cause and stated, "[T]here is nothing in the employee's hearing file that indicates the employee contacted the hearing office to request a postponement. While it is understandable that the employee faced difficulty in obtaining time off of work, the least the employee could have done was to contact the hearing office to request a postponement or seek alternatives to the requirement that she appear at the time and place set. Accordingly, the commission cannot find that the employee had good cause for failing to appear at the originally scheduled hearing." The same rationale is even more compelling here where the employer had control over the witness's schedule.

Under these facts, where the employer had been reminded several times of its scheduling/postponement request obligations (see, Schmidt v. Pizza Hut, UI Hearing No. 99002776MD (LIRC Sept. 17, 1999); Coleman v. United Retail Inc., UI Hearing No. 02607460RC (LIRC March 7, 2003); Gillon v. Hondo Inc., UI Hearing No. 00603849 MW (LIRC Aug. 25, 2000)); where the employer had control over the means for meeting its witness's work obligations; and where the employer failed to contact the department once it became apparent that its witness was not available to attend the hearing, the commission concludes that the employer has not shown good cause and the request for hearing should be dismissed as a result.


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