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

TERRY G LOVE, Employee

SITE STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09600669MW


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 issue to be decided is whether the employer had good cause for the failure to appear at a hearing scheduled for January 14, 2009.

The employer's manager failed to appear at the hearing because a client that accounts for seventy-five percent of its business demanded that the manager meet with the client out of the office. The employer's business would not survive the loss of the client. The owner of the business was out of town so the manager had to attend the meeting. The manager was the individual with firsthand knowledge to offer at the UI hearing. The employer chose to meet with its client rather than attend the UI hearing. The employer did not notify the hearing office of its inability to attend because the employer's manager was out of town meeting with the client and did not have her calendar with her.

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).

Parties are expected to arrange time off from everyday affairs, including work, to attend UI hearings. However, the employer was faced with an unexpected business crisis. The employer's manager who had firsthand evidence to offer at the hearing had to go out of town to deal with the situation. Whether the employer called the hearing office or not, it was unable to attend the UI hearing. The employer acted as a reasonable prudent person.

The commission therefore finds that the employer failed to appear at the scheduled January 14, 2009, hearing, and that its failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) 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. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed March 27, 2009
lovete . urr : 132 : 6 : PC 712.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION

The commission did not consult with the ALJ who presided at the hearing regarding his impressions of witness credibility and demeanor. The employer's testimony was not in dispute. The commission's reversal of the ALJ's decision is not based on credibility. The commission disagrees with the ALJ's conclusion that the employer did not have good cause for failing to appear at the hearing.


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uploaded 2009/05/04