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

SHELLY J OLSEN, Employe

DANKA OFFICE IMAGING CO, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99602645MW

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

The issue in this case is whether the employer had good cause for failing to appear at the hearing scheduled to take place at 9:30 a.m. on April 2, 1999.

The employer's witness, the individual with firsthand testimony, could not appear at the original hearing because he was ill. He had been scheduled to appear via telephone from his work location. However, he was ill from a reaction to penicillin after a root canal. The employer's witness called the employer's representative on April 1 and explained his situation by leaving a voice mail message. Neither the employer nor the employer's agent contacted the hearing office to request a postponement.

The commission finds that the employer had good cause for failing to appear at the hearing. While it may have been possible to contact the witness at home if the hearing office had been contacted, the fact is that the employer's witness was ill. That the employer's agent did not contact the hearing office before the 9:30 a.m. hearing does not indicate inattentiveness or negligence.

This is not a case where the witness or the party's representative knows days in advance that the party won't be able to attend the hearing, and fails to request a postponement. Indeed, had this been a hearing scheduled for the afternoon, and the employer or its representative had failed to contact the hearing office, the commission would find differently.

The commission therefore finds that the employer had good cause for failing to appear at the April 2, 1999, hearing 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 to hearing office for a hearing and decision on the merits of the case.

Dated and mailed July 8, 1999
olsensh.urr : 132 : 6  PC 712.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission disagrees with the ALJ's conclusion based on essentially the same factual finding, but reaches a different legal conclusion.

cc: R E Harrington Services

Carol Weidinger
c/o R E Harrington

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