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


BRANDY L YOUNG, Employe

FIRST HEALTHCARE CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98605515MW


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 the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer failed to appear at a scheduled August 4 hearing in the above-captioned case, and the issue before the commission is whether it had good cause for that failure. The commission concludes that it did, and so reverses the September 14, 1998 appeal tribunal decision.

Following an initial determination allowing benefits to the employe, the employer's representative filed a timely request for hearing. The representative asked that hearing not be scheduled between August 2 and September 3, 1998, on the ground that the employer's witness to the employe's alleged misconduct would be unavailable during that time period. Shortly thereafter, the employer's agent contacted the Department of Workforce Development and indicated that the witness actually would be unavailable August 21 through September 3. The department thereafter mailed a notice for hearing on August 4, 1998. When the employer's representative received the notice, it contacted the department to request a postponement on the ground that the employer was facing a state inspection in two weeks, and the witness in question would be unable to take off work for the hearing. The department representative with whom the employer's representative spoke, denied the postponement. The employer subsequently did not appear at the hearing.

The employer had been subject to state monitoring since July 12, and was in immediate jeopardy of being closed. All management employes, including the two who would have appeared at the hearing on the merits, had to spend all their time training subordinates in order that the employer be able to pass an impending inspection by state authorities.

The standard for a failure to appear at hearing is "good cause." That is, a party is excused from such failure if the party had good cause therefor. The employer's situation is analogous to that of an employe who had asked his or her subsequent employer for time off to attend a hearing, but which request has been denied. At that point, it is held that the employe had good cause for his or her failure to attend the hearing, and reasonable efforts are made to accommodate the employe thereafter. In the present case, the impending inspection and potential closing of the employer by the state constitute compelling reasons not to hold the employer, in the narrow circumstances of this case, to the general requirement that parties take time off from work to attend unemployment insurance hearings. To dismiss the employer's request for hearing under the circumstances here, places form too far over substance.

The commission therefore finds that the employer had good cause for its failure to have appeared at the scheduled August 4, 1998 hearing.

DECISION

The September 14, 1998 appeal tribunal decision is reversed. This reversal has the effect of vacating the August 4, 1998 appeal tribunal decision as well. This matter is remanded, finally, to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed: December 9, 1998
youngbr.urr : 105 : 6 PC 712.5  PC 717

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision based upon a differing credibility determination from that made by the administrative law judge. Such is not the case here. Rather, the commission simply concludes that the undisputed circumstances gave the employer good cause, as a matter of law, for its failure to have appeared at the scheduled August 4 hearing.

cc: FIRST HEALTHCARE


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