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

JORDAN R BENOIT, Employee

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08003045MD


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 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 request for hearing is dismissed. The initial determination remains in effect.

Dated and mailed October 16, 2008
benoijo . usd : 150 : 1  PC 712.4

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee submitted a petition for commission review of a dismissal decision. The petition does not raise any particular objections or contentions. The commission has reviewed this matter.

The record reflects that on August 11, 2008, the employee was scheduled to attend two hearings by telephone. The issue for the first hearing, hearing number 08003046MD was the employee's separation from employment and whether she was eligible for benefits based upon that separation. The issue for the second hearing, hearing number 08003045MD, was whether the employee filed a timely appeal to a determination.

The ALJ decided to conduct the separation hearing first, hearing no. 08003046MD. After connecting the parties via telephone, he introduced that hearing record. Approximately one hour into the hearing, and after the direct and cross-examination of the employer's witness was complete and during the employee's direct testimony, the employee's telephone connection was severed.

The administrative law judge made several attempts to contact the employee and only received the message that she was unavailable. The ALJ notified the employer that he would keep the record open in case she contacted him and, if she did so, he would likely reschedule the remainder of the hearings. When she did not contact the ALJ, he issued his decisions the next day, August 12, 2008.

The ALJ treated the employee's disconnection from the first hearing as a withdrawal (1)  and her failure to be available to start the second hearing as a dismissal.

The employee's petition does not provide any explanation as to the employee's unavailability. It was forwarded to the commission as a petition for review of the dismissal decision. (2)

The commission affirms the ALJ's dismissal of the employee's appeal regarding hearing number 0800345MD. Specifically, Wis. Stat. § 108.09(4)(a) provides

Opportunity to be heard. Unless the request for a hearing is withdrawn, each of the parties shall be afforded reasonable opportunity to be heard, and the claim thus disputed shall be promptly decided by such appeal tribunal as the department designates or establishes for this purpose.

In this case, the employee was provided the opportunity to be heard. She was available for a portion of the first of the two hearings scheduled that day. She was not available for the second at the telephone number she had provided as the number the ALJ should use to contact her. Thus, the dismissal was proper.

As a note, because the employee's petition does not provide any reason for her unavailability in the first hearing, it necessarily does not argue any good cause for a retraction of the withdrawal; (3)  thus,  it was not treated as a retraction request within the meaning of Wis. Admin. Code § DWD 140.05(2), which provides:

An appellant may submit a request to retract its withdrawal and reinstate its appeal. The retraction request shall be in writing and state a reason for the request. The administrative law judge may not grant a request to retract a withdrawal unless the request establishes good cause for the retraction and is received within 21 days after the withdrawal decision was mailed to the appellant.

 



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Footnotes:

(1)( Back ) The withdrawal decision recounts the facts and informs the employee of the procedures that she would need to follow if she sought to retract the withdrawal, namely to request a retraction within 21 days and explain why she was disconnected and was thereafter unavailable.

(2)( Back ) The letter was not treated as a good cause letter because the employee did not make any assertions regarding her failure to appear.

(3)( Back ) Wis. Admin. Code § DWD 140.05(1) provides, An appellant may withdraw its appeal at any time before the issuance of a decision on the merits by notifying the hearing office or by choosing not to continue to participate in a hearing. The administrative law judge shall issue a withdrawal decision after determining that an appeal has been withdrawn.

 


uploaded 2008/11/17