STEPHEN H KUSTERS, Employee

ABC BEVERAGE CORP, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

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

Dated and mailed October 29, 2004
kustest . usd : 115 : 1  PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The employer appealed the LID, and the department, on August 31, 2004, 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 have conflicts attending a hearing, notify the hearing office immediately."

A notice of hearing was mailed to the parties on September 24, 2004, indicating that the hearing had been scheduled for October 4, 2004, at 1:00 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 administrative law judge issued an amended dismissal order on October 7, 2004.

In correspondence sent and received through facsimile transmission on October 11, 2004, the employer filed a timely petition for commission review. In this petition, the employer presents the following explanation for its failure to appear at the October 4 hearing:

On 10/4/04, I, Bob Fonfara, was scheduled to appear.for an unemployment hearing.Due to unexpected circumstances I was unable to meet this obligation. I was left short handed on the job, when my receiver called in and was caught up with getting the position covered for the day.By the time I had the work responsibilities covered it had passed 1 pm and the appointment was missed.

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 witness was busy at work.

Here, 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.

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, it is concluded that the employer's explanation does not satisfy the good cause standard and its request for hearing is dismissed as a result. See, Kinkead v. Pilot Travel Centers LLC, UI Hearing No. 02611275RC (LIRC April 10, 2003)(good cause not shown where, despite numerous cautions from department, employer, who did not appear due to understaffing at workplace on date of hearing, failed to arrange its business affairs in a manner permitting the appearance of its witness and failed to contact department when scheduling conflict became apparent).

cc:
UC Express
ABC Beverage Corp. (Racine, Wisconsin)

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uploaded 2004/11/03