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


CLINTON M SCHMIDT, Employe

PIZZA HUT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99002776MD


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 employer's request for a hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed September 17, 1999
schmicl.usd : 132 : 1 PC 712.5

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employer has petitioned for commission review of the adverse appeal tribunal decision which dismissed its request for a hearing based on its failure to appear at the originally scheduled hearing. The employer states that it did not receive the notice of hearing until after the main witness had already left for vacation. The employer further states that after receiving the confirmation of a timely appeal on June 28, 1999, it was aware that a hearing was eminent and it had every intention of participating. However, the employer was notified on more than one occasion through department correspondence that it should alert the department if there were any dates on which its witnesses would be unavailable.

The initial determination was issued on June 11, 1999. The initial determination contains appeal information on the reverse side which states that if a party disagrees with the determination the party can submit a written appeal and that such appeal should indicate a number of items including "dates and times when you, your agent, attorney or witness(es) are not available for a hearing as postponements cannot always be granted. The hearing office will try to accommodate your request." The employer filed a request for hearing on June 21, 1999. It did not provide any dates or times on which its witness would not be available. Indeed, the supervisor who was to testify at the original hearing testified on the good cause issue that when he was contacted by the home office and told he would need to testify he was not asked about dates on which he would be unavailable. Not only did the initial determination ask the employer to provide dates on which its witnesses would not be available, the confirmation of timely appeal notice again stated "if you, your representative and/or witness may not be available for a hearing in the next few weeks, please notify the hearing office immediately of those dates." No information was provided by the employer to alert the department that its witness would be unavailable on particular dates. It was not until the notice of hearing was actually sent out, that the employer attempted to have the hearing postponed. The point of asking parties to indicate dates of unavailability on the initial determination and the confirmation of timely appeal notice is so the need to reschedule a hearing can be avoided. The employer had ample opportunity to contact its witnesses and inquire as to whether there were any dates the witnesses would be unavailable. Indeed, the witness testified that the witness had a vacation planned well in advance of even the initial determination in this case. The employer therefore could have alerted the department of dates to avoid when it appealed the initial determination.

cc: PIZZA HUT


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