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

SHEILA A LOGWOOD, Employee

ABC'S 123'S, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05601084MD


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 employer's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed May 6, 2005
logwosh . usd : 115 : 4   PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

An initial determination (LID) was issued December 30, 2004, allowing benefits. The file indicates that, although the employer was allowed the opportunity to provide information, it failed to do so. The LID contained instructions on filing an appeal and stated in these instructions that an appealing party should "provide...dates when you, your attorney, agent, or witness(es) are not available for a hearing as postponements cannot always be granted."

The employer appealed the LID, and the department, on December 23, 2002, 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." (emphasis in original)

A notice of hearing was mailed to the parties on January 13, 2005, indicating that the hearing had been scheduled for January 25, 2005, at 1:45 p.m. This notice of hearing stated that, "Postponements are not granted for the mere 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." (emphasis in original)

The employer did not contact the department to request a postponement or other accommodation, or appear for the January 25 hearing.

The employer explains that, although she received the hearing notice one week before the scheduled hearing, she did not appear because she is busy running her business.

The standard for failing to appear at a hearing is "good cause." That 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)

The employer failed to appear at the hearing here because she was busy at work. 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 it to attend the scheduled hearing. Not only that, but, when it became apparent that it 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 employer's testimony by phone.

In Daly v. APAC Teleservices Inc., UI Hearing 98202044LX (LIRC March 31, 1999), where the employee did not appear at hearing because she couldn't get time off from her new job, the commission dismissed the employee's request for hearing. The commission held that the employee had not shown good cause and stated, "[T]here is nothing in the employee's hearing file that indicates the employee contacted the hearing office to request a postponement. While it is understandable that the employee faced difficulty in obtaining time off of work, the least the employee could have done was to contact the hearing office to request a postponement or seek alternatives to the requirement that she appear at the time and place set. Accordingly, the commission cannot find that the employee had good cause for failing to appear at the originally scheduled hearing." The same rationale is even more compelling here where the employer had control over its schedule.

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 work obligations; and where the employer failed to contact the department once it became apparent that it would not be attending the hearing, the commission concludes that the employer has not shown good cause and affirms the administrative law judge's decision that the employer's request for hearing should be dismissed as a result.



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uploaded 2005/05/09