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

SCOTT M KNAPP, Employee

AGRICULTURE FOOD SAFETY & INSPECTION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04607254MW


ORDER

The appeal tribunal decision issued on September 16, 2004, is set aside, and this matter is remanded to the department for further hearing and decision on the merits of the employee's claim.

Dated and mailed November 26, 2004
knappsc . urr : 115 : 1  PC 712.1

/s/ James T. Flynn, Chairman

David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION


As the result of an appeal of a department determination, the department provided notice to the parties that a hearing on the merits of the employee's claim would be conducted on August 19, 2004.

Even though represented by UC Express, the employer, through Dawn Ruffner, was very involved in prehearing preparation and communication with the department. Ruffner filed 60 pages of potential hearing exhibits, and a memo listing the names and numbers of those who would be participating in the August 19 telephone hearing. Ruffner served as the employer's representative at the August 19 hearing. The hearing, which commenced at 9:30 a.m., was not completed within the allotted time, so the administrative law judge directed that another hearing date be scheduled.

On August 19, 2004, at 3:52 p.m., i.e., after the conclusion of the August 19 hearing, a person who identified herself as Jessica Schubert, the employer's human resources manager, telephoned the department and, according to the person who created the record of the conversation, stated that "the employer will not participate in the hearing."

Based solely on the record of this telephone conversation, the administrative law judge directed that, when the continued hearing was scheduled, a copy of the hearing notice not be sent to the employer or its agent. As a result, the employer did not receive notice of the continued hearing and did not appear. The appeal tribunal decision was issued on September 16, 2004, and, upon receipt, UC Express telephoned the department to find out why it had not been notified of the date of the continued hearing. Upon receiving the department's explanation, UC Express indicated that no one named Jessica Schubert worked for the employer, and filed a petition for commission review.

The commission does not understand why an administrative law judge would direct that a hearing notice not be sent to a party regardless of the circumstances. It is even less understandable here where the employer had been unusually diligent in preparing for hearing, and where no one named Jessica Schubert had ever been involved in any of the employer's extensive communications with the department.

The failure of the department to send notice of the continued hearing to the employer or its agent provided good cause for the employer's failure to appear. As a result, it is appropriate to set aside the September 16, 2004, appeal tribunal decision, and to remand this matter to the department for further hearing and decision on the merits of the employee's claim for benefits.



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uploaded 2004/11/29