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

WANDA L BUTLER, Employee

FAIR OAKS FARMS LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10607967MW


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 makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

An initial determination adverse to the employer was issued on March 26, 2010. The employer timely appealed, and a hearing was scheduled for July 19, 2010, at 8:45 a.m. On July 15 the employer's representative contacted the hearing office to request a postponement because the employer's only witness had a doctor's appointment scheduled at the same time as the hearing. The request for postponement was denied. The employer did not appear at the hearing, and the hearing request was dismissed. The dismissal decision was issued on July 26.

On August 13, 2010, the employer's representative submitted a written explanation for the failure to appear. Based on that explanation, the dismissal was set aside and, on September 20, 2010, a hearing was held on the failure to appear.

At the hearing the employer's witness, the human resource manager, testified that she received notice of the hearing on July 12, but could not appear because of a medical appointment. The witness testified that she contacted her agent right away, and was told that he would request a postponement. She later learned the request was denied. They decided to leave it at that and appeal if necessary.

On September 21, 2010, the administrative law judge issued a decision finding no good cause for the employer's failure to appear at the July 19 hearing and reinstating the July 26 appeal tribunal decision. The employer has filed a timely petition for commission review of that decision.

The issue to be resolved is whether the employer's failure to appear at the July 19 hearing was with good cause.

The appeal tribunal found that the employer's witness felt it was more important to attend her doctor's appointment than to reschedule the appointment and attend the hearing, and concluded that this reason for failing to appear did not constitute good cause. The commission disagrees. A pre-scheduled doctor's appointment is a valid reason to request that the hearing be rescheduled, and the commission believes that the employer's postponement request should have been granted. The appeal tribunal did not ask the witness how long ago she had scheduled the appointment and whether it was possible to reschedule it. Absent any reason to believe that the doctor's appointment could have been easily rescheduled, the commission does not believe the witness was obligated to do so in favor of the hearing.

The commission, therefore, finds that the employer failed to appear at the hearing scheduled for July 19, 2010, 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 November 12, 2010
butlewa . urr : 164 : 1 PC 712 ; PC 712.5

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

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.


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