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


MICHAEL J KAUTZMAN, Employe

ABRAHAM ISAAC & JACOB, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98606107MW



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

On August 12, 1998, the Department of Workforce Development issued an initial determination which held that the employe was making a satisfactory search for work in pursuit of employment. The employer filed a timely request for hearing on what it took to be an adverse initial determination and, by September 2 notice, hearing was scheduled for September 9, 1998 at 8 a.m. The employer failed to appear at that the hearing, and the issue in the case is whether it had good cause for that failure. The commission concludes that it did, and so reverses the appeal tribunal decision.

On the morning of the hearing, the owner of the employer, who was the only individual who could appear on the employer's behalf, was so ill as to have been unable to get out of bed. The owner had his administrative assistant contact the hearing office to ask for a postponement, but she apparently did so too late.

The standard for a failure to appear at 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 individual might commit in similar circumstances. In this case, though, there is not even any "neglect" which can be attributed to the employer. The owner was ill at the time of hearing and, because of illness, was unable to appear at the hearing. Illness constitutes good cause for a failure to appear at hearing, however.

The administrative law judge, in dismissing the employer's request for hearing, reasoned that the employer produced no competent (i.e., non-hearsay) evidence to the effect that the employer had requested a postponement. The commission does not believe, however, that that reasoning applies in this case. The administrative code does allow the department to deny requests for postponement when those requests are not made in a timely manner. That provision seems more applicable, however, to situations where a party knows it wants a postponement as soon as it receives notice of the date and time of hearing. It of course is reasonable to require parties in that circumstance to make their requests for postponement as soon as possible. That reasoning is inapplicable, though, in the circumstances present here, where the record indicates that the employer had every intention of appearing at the hearing but, on the morning of the hearing, was ill and thus unable to appear. At this point, the issue is not whether the party requests a postponement, but rather whether the party will have good cause for its failure to appear at the scheduled hearing.

The commission therefore finds that the employer had good cause, within the meaning of Wis. Stat. § 108.09(4), for its failure to have appeared that the scheduled September 9, 1998 hearing.

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed: December 23, 1998
kautzmi.urr : 105 : 7  PC 712.5  PC 717

/s/ David B. Falstad, Chairman

/s/ 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 matter. Such conferral is required where the commission is considering reversing the appeal tribunal decision on the ground of a differing credibility assessment from that of the administrative law judge. Such is not the case here. Rather, the commission believes that the owner's illness gave the employer good cause for its failure to have appeared at the scheduled hearing, regardless of whether the employer sought postponement of that hearing.


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