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

NICHOLAS G BARTOW, Employee

TILSEN ROOFING CO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09003975MD


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 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 employee's request for hearing is denied, and the department determination remains in effect.

Dated and mailed November 19, 2009
bartoni . usd : 115 : 5   PC 712.5

/s/ James T. Flynn, Chairperson

Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


The employee appealed two department determinations:

* ID # 090165162 (Hearing No. 09002833MD)-finding a quit with no qualifying exception
* ID # 090165252 (Hearing No. 09002834MD-finding the employee was not able and available for work

By correspondence dated June 5, 2009, the parties were provided notice that hearing on the employee's appeals would be held by telephone on June 16, 2009, at 1:00 p.m. The hearing notices cautioned that, "If there are unforeseen delays, you will be expected to wait up to one hour for this hearing to begin." This notice also stated that, "Postponements are not granted for the mere convenience of the parties, their representatives or witness(es). All participants are expected to arrange time off from everyday affairs, including ...work..."

When the administrative law judge phoned the employee at 1:20 p.m., the employee was not available to participate in the hearing because he was working. The employee had expected the call at 1:00 p.m., and, when he had not received it by 1:20 p.m., he went back to work.

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 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. See, Kautzman v. Abraham Isaac & Jacob, UI Hearing No. 98606107MW (LIRC Dec. 23, 1998).

Here, even though the employee had reason to be aware that he may have to wait up to one hour for the hearing to commence, he was not available to take the call from the presiding administrative law judge after only 20 minutes had elapsed.

Failing to attend a scheduled hearing to avoid missing work does not meet the good cause standard. Garry v. Federal Express Corp. and LIRC, Case No. 98-CV-004405 (Milw. Co. Cir. Ct., Feb. 10, 1999). In addition, while it is understandable that the employee may have faced difficulty in obtaining time off work, the least the employee could have done, particularly given the information provided to him in the hearing notices, was to contact the hearing office to request a postponement or seek alternatives to the requirement that he appear at the scheduled time. Accordingly, the commission cannot find that the employee had good cause for failing to appear at the scheduled hearing. Daly v. APAC Teleservices Inc., UI Hearing No. 98202044LX (LIRC March 31, 1999); Kinkead v. Pilot Travel Centers LLC, UI Hearing No. 02611275RC (LIRC April 10, 2003).


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2009/12/14