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

WENDY S SERVI, Employe

GENERAL NUTRITION CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98600105MW

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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On October 3, 1997, the department issued an initial determination unfavorable to the employer. The employer filed a timely hearing request and, on October 31, the department issued a hearing notice for a November 11 hearing. Department records indicate that, on November 6, 1997, the employer's agent sent a letter to the hearing office requesting a postponement on the ground that the employer's witness, Ron Starcovich, had previously scheduled meetings on the day of the hearing which could not be rescheduled. The request for postponement was denied. The employer failed to appear at the hearing and its hearing request was dismissed as a result.

The issue to be resolved is whether the employer's failure to appear at the November 11, 1997 hearing was with good cause.

At the hearing the employer explained that it failed to appear because its representative had a previously scheduled business meeting. The appeal tribunal held that the employer did not show good cause for its failure to appear, noting that the employer's representative had made no attempt to find a substitute person to represent the employer and, therefore, had not exhausted all of the steps of a reasonably prudent person to ensure the employer's appearance at the hearing. The commission disagrees and concludes that good cause was established.

The employer's representative, Mr. Starcovich, testified that he is the person who discharged the employe and who had firsthand knowledge about the circumstances surrounding her discharge. Consequently, Mr. Starcovich's firsthand testimony was needed at the hearing, and any attempt to appear by a substitute would have been unavailing. Moreover, the employer did not simply skip the hearing because its witness was unavailable, but attempted to arrange for a postponement several business days prior to the scheduled hearing date. This request was denied, notwithstanding the fact that Wis. Admin. Code § DWD 140.08(2)(e) specifically provides that an exceptional circumstance justifying the granting of a postponement includes a business meeting of a necessary witness which was scheduled prior to receipt of the hearing notice and which cannot be rescheduled. Given that the employer's key witness was unable to appear at the hearing due to a previously scheduled business meeting, and considering that the employer unsuccessfully attempted to reschedule the hearing date because of this circumstance, the commission is satisfied that the employer had good cause for its failure to appear.

The commission, therefore, finds that the employer/respondent failed to appear at the hearing held on November 11, 1997, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, the matter is remanded for a new hearing and decision on the merits.

Dated and mailed: April 24, 1998
servi.rev : 164 : 1 PC 712.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon any differing credibility assessment, but is as a matter of law.

cc: THE FRICK CO

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