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

ESSIE M THOMAS, Employee

KELLY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003194MD


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 it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer, a national staffing agency, filed a timely appeal to a determination that the employee had not been discharged for misconduct connected with her work for the employer. A confirmation of its appeal was mailed to the employer's corporate office address in Detroit, Michigan and the Milwaukee, Wisconsin address it had chosen as the address of record for the employee because her position was filled out of Milwaukee. The employee's statement indicated that she performed her work for the employer in Janesville.

A notice of hearing was mailed to the employer at its Detroit address and to the employee at her Beloit, Wisconsin, address on July 3, 2008, scheduling an in-person hearing in Janesville, Wisconsin on July 15, 2008. On July 14, 2008, the employer requested that the employer be allowed to participate by telephone because its firsthand witnesses were located in Glenview, Illinois, more than fifty miles from the hearing location. The employer was advised to send a representative from its local office to the hearing. The employer did not send a local representative to the hearing because it would have had to close its Janesville office to do so and the personnel from the Janesville office had no firsthand testimony to offer. The employer did not appear at the July 15, 2008, hearing.

The issue to be decided is whether the employer had good cause for failing to appear at the July 15, 2008, hearing. 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 his 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's witness, Ms. Hime, has been handling the employer's Wisconsin UI claims for more than ten years. The hearing notice was sent to the Detroit address. The hearing office provides information to parties that a hearing will/can be held by telephone if the party is more than fifty miles away. The employee was one of very few workers for a particular client which led the local address to be Milwaukee, the work location to be Janesville, and the location of the employee's supervisors to be Glenview, Illinois. In Ms. Hime's ten years working with Wisconsin, no employer witness has been more that fifty miles away from the hearing location. Ms. Hime's thought also that, given the local address was Milwaukee, the hearing office would know that the employer was more than fifty miles away. The record does not reflect that the hearing office would have been unable to allow the employer to appear by telephone. The record instead reflects that because the employer had an office in Janesville the ALJ required the employer to appear in person. However, the employer's personnel in Janesville had no interaction with the employee and thus no firsthand testimony to present.

Considering all the circumstances, the commission finds that the employer had good cause for failing to appear at the July 15, 2008, hearing within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employer's request for a hearing on the merits is not dismissed. A hearing on the merits will be scheduled as soon as possible.

Dated and mailed October 16, 2008
thomaes . urr : 132 : 1 : PC 712.3  PC 712.5

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

 

NOTE: The commission did not consult with the ALJ who presided at the hearing regarding witness credibility. The commission has not reversed the ALJ based on credibility but because it reaches a different conclusion than that reached by the ALJ based on the evidence presented.

 


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