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

CRAIG W ROSENKRANZ, Employee

SCHWANS HOME SERVICE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09006830MD


An administrative law judge 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 administrative law judge. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW


The initial determination issued on September 1, 2009 denied benefits, and the employee filed a timely hearing request. A hearing was scheduled for October 19, 2009, at 8:30 a.m. The employee was to appear by telephone.

On October 15, 2009, the employee called the hearing office to provide a telephone number at which he could be reached. The employee explained that he would be at work and asked if the hearing could be scheduled after 3:15 p.m., when he would be done for the day. The employee was told that to reschedule the hearing would create delays and that he should try to handle the matter when he was on break, and should work it out with the administrative law judge at the time.

At the designated date and time the administrative law judge called the employee at the telephone number he provided, his work number. The individual answering the call transferred the administrative law judge to the office manager, who told the administrative law judge that the employee was working and could not take a call. The office manager suggested that the administrative law judge try the employee between 9:00 a.m. and 9:10 a.m. The administrative law judge explained that the employee had only until 8:45 a.m. to appear, or his case would be dismissed. The office manager then agreed to put the call through.

When the employee answered he stated he was prepared to proceed with the hearing. The administrative law judge informed the employee that he was scheduled for an hour and asked if he would be available for that time. The employee replied that he had just started a new job and could not really be taking time off. The administrative law judge explained to the employee that the office manager had indicated he could not attend the hearing during work hours, but that she could not wait until the employee's break. She asked the employee whether he would be participating or whether he wanted to write a good cause letter asking for a new hearing. The employee indicated he would write a good cause letter. The matter was then dismissed.

The employee filed a timely appeal. The issue to be decided is whether the employee had good cause for failing to appear at the hearing.

A party who misses a hearing is entitled to further hearing if he establishes good cause for his initial failure to appear. The courts have defined this standard to be "excusable neglect," i.e. the neglect a reasonably prudent individual might commit in similar circumstances. See, Kautzman v. Abraham Isaac & Jacob (LIRC, Dec. 23, 1998).

Prior to the hearing the employee requested that the hearing be delayed until after 3:15 p.m. However, the hearing office would not accommodate this request.(1) The employee nonetheless attempted to appear at the hearing as scheduled, but could not take an hour off of his new job. The employee's unwillingness to jeopardize his new employment in order to appear at an unemployment hearing is certainly understandable and constitutes good cause.

The commission, therefore, finds that the employee failed to appear at the hearing scheduled for October 19, 2009, but that such 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, this matter is remanded for a hearing and decision on the merits.

Dated and mailed April 14, 2010
rosenkr . urr : 164 : 1 PC 712

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the appeal tribunal about credibility and demeanor prior to reversing. The commission's reversal is not based upon a differing assessment of witness credibility. The employee's testimony that he requested a postponement went unrebutted and, further, the hearing record clearly indicates that his new employer would not permit him to participate in an hour-long hearing.

cc: Schwan's Sales Enterprises, Inc. (Fond du Lac, Wisconsin)


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Footnotes:

(1)( Back ) The administrative law judge who conducted the procedural hearing found that there was no record of this request, as it was not reflected in the hearing office notes. However, the hearing office notes are not in the record, and the record contains nothing to rebut the employee's testimony. Moreover, the commission notes that in his appeal of the dismissal of his hearing request, the employee again requested that any hearing be held after 3:15 p.m. However, this request was disregarded and the hearing was scheduled for 11:30 a.m.