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

NEAL T FRANZ, Employee

MILWAUKEE MESSENGER SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04000390MD


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 employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed May 14, 2004
franzne . usd : 115 : 1  PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


The employee explains that he did not appear at the scheduled hearing on his appeal because he did not want to miss work at his new job while he was still on probation.

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)

Failing to attend a scheduled hearing to avoid missing work does not meet the good cause standard. Garry v. Federal Express Corp. and LIRC, Case No. 98-CV-004405 (Milw. Co. Cir. Ct., Feb. 10, 1999). See, also, Gerasch v. Northern Petro Services, Inc., UI Hearing No. 03001637WK (LIRC May 21, 2003) (no good cause where appellant did not appear at hearing to avoid missing work at his new job while on probation). Such a conclusion is rendered even more compelling here by the fact that, as the administrative law judge found, the employee did not ask his new employer for time off to attend the scheduled hearing, despite being advised in department mailings that postponements would not be granted for the mere convenience of the parties who were expected to arrange time off from their everyday affairs, including their work duties. The commission finds no persuasive reason in the hearing record to overturn the credibility determination upon which this finding is based.

The commission also agrees with the administrative law judge that it was not reasonably prudent for the employee to assume that his postponement request had been granted when he did not hear from the department in this regard.

cc: Milwaukee Messenger Service (Stevens Point, WI)


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uploaded 2004/05/18