MELVIN R SANDERS, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, 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 issued a decision on July 28, 2004, which affirmed the appeal tribunal decision. On August 24, 2004, upon reconsideration, the commission set aside its July 28, 2004, decision and ordered that a hearing be held on the employee's failure to appear at the originally scheduled hearing. On November 4, 2004, a hearing was held on the employee's failure to attend the original hearing.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ at the remand hearing. Based on its review, the commission makes the following:

A hearing was held on May 3, 2004, pursuant to the employer's appeal to an adverse initial determination. Only the employer appeared at that hearing. On May 6, 2004, the appeal tribunal reversed the initial determination and found the employee was ineligible for benefits.

The issue is whether the employee had good cause for failing to attend the originally scheduled hearing.

The employee did not attend the May 3, 2004, hearing because he had recently begun an assignment with a temporary help agency. The temporary help agency's representative and the supervisor at the client location both advised the employee that it was not a good idea for the employee to miss work to attend the UI hearing. The employee did not attend the hearing because he did not wish to jeopardize his employment or the possibility of obtaining a permanent position with the client. The client subsequently hired the employee.

The commission finds that the employee had good cause for failing to attend the May 3, 2004, hearing. An employee is expected to request time off from an employing unit to attend a UI hearing. However, when the employee raised the issue he was given the impression that to attend the hearing would jeopardize his position with the employer and/or the assignment with the client. The employee made a reasonable decision not to jeopardize his continued employment by attending the hearing.

The commission therefore finds that the employee had good cause for failing to attend the May 3, 2004 hearing, within the meaning of within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

The appeal tribunal decision issued on May 6, 2004, is set aside. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed December 22, 2004
sandeme . urr : 132 : 2 : PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

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uploaded 2005/01/04