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

RICHARD J WIPPERFURTH, Employee

FERRELLGAS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002041MD

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 is eligible for benefits beginning in week 51 of 2003, if he is otherwise qualified.

Dated and mailed July 15, 2004
wipperi . usd : 115 : 1  PC 712.5  PC 717

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION


An initial determination (LID) was issued January 14, 2004. The employee appealed the LID, and the department, on January 20, 2004, mailed to the parties 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,.vacation.etc. However, if you, your representative and/or witnesses have conflicts attending a hearing, please notify the hearing office immediately of those dates." (emphasis in original)

A notice of hearing was mailed to the parties on January 29, 2004, indicating that the hearing had been scheduled for February 10, 2004, at 12:15 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,.vacation,.etc." (emphasis in original)

The department apparently did not hear anything from the employer until February 4, 2004. The employer's representative indicated in this telephone contact that its representative/witness would be on vacation on the day of hearing and that, as a result, the employer was requesting a postponement. The department denied the postponement request. The employer did not appear for the hearing.

On April 29, 2004, the department conducted a hearing on the issue of whether the employer had good cause for its failure to appear at the February 10 hearing on the merits of the employee's claim. As a result of this hearing, a department administrative law judge issued a decision on May 4, 2004, concluding that the employer had failed to show good cause.

The employer filed a timely petition for commission review of this decision.

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)

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.

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.

The employer's postponement request was premised on its representative/witness's scheduled vacation. This does not constitute an exceptional reason within the meaning of Wis. Adm. Code § DWD 140.08(2), and the postponement request was properly denied as a result.

Under these facts, where the employer had apparently been aware for some time that its representative/witness would be unavailable from February 1-11 (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 employer, despite notice of its obligation to immediately notify the department of dates of potential conflict (see, Gillon, supra), failed to notify the department, until the hearing had already been noticed, that its representative/witness would be unavailable from February 1-11; and where the employer failed to present an exceptional reason for its postponement request, the commission concludes that the employer has failed to sustain its burden to show that it had good cause for its failure to appear at the February 10 hearing.

cc: Ferrellgas, Inc. (Madison, Wisconsin)

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