Wis.LIRC UC Decision: Keegan, Jeffry - September 11, 2000 - PC 712.6 - Hearing, failure to appear - where employe appears at hearing, gives testimony sufficient to support his case, and then walks out although the ALJ has more questions to ask, there is not a "failure to appear", and the case should be decided based on what evidence there is; AA 265 - Self-employment

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

JEFFRY A KEEGAN, Employe

REMEDY INTELLIGENT STAFFING INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00003002MD

On May 24, 2000, the Department of Workforce Development issued an initial determination which held that the claimant was not available for work because of his self-employment. The employe filed a timely request for hearing on the adverse determination, and hearing was convened on June 26, 2000 in Madison, Wisconsin before a department administrative law judge. On June 27, 2000, the administrative law judge issued an appeal tribunal decision dismissing the employe's request for hearing. The employe filed a timely petition for commission review of the adverse appeal tribunal decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, and after consultation with the administrative law judge, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The first issue is whether the employe is entitled to a decision on the merits of the initial determination. As indicated above, hearing on the merits was convened on June 26, 2000 by a department administrative law judge. During the hearing, however, the employe got up and simply left the premises. The administrative law judge treated this action by the employe as a failure to appear, reasoning that he still had additional questions to ask the employe about the employe's alleged self-employment.

The employer did not appear at the hearing. Nor did a representative of the Department of Workforce Development appear on the department's behalf. Given these factors, the commission is reluctant to treat the employe's actions as a failure to appear. The commission in no way condones the employe's conduct in this case and, were it not for the quantity of evidence the employe did give before leaving the hearing, the commission would fully agree with the administrative law judge that the employe's appeal should be dismissed. Given that testimony, though, and the fact that no other parties appeared, the commission finds that the employe did appear at the June 26, 2000 hearing. These factors distinguish this case from Vogel v. Albert Trostel Packings Ltd., UI Dec. Hearing No. 91-004482 JV (LIRC 11/22/91). In that case, the employe left the hearing before giving sufficient evidence to support his case. In addition, the employer had appeared in that case and had not yet had opportunity to cross-examine the employe. Given those factors, in that case a finding of failure to appear was in order.

SELF-EMPLOYMENT

The issue on the merits is whether the employe is self-employed, such that his self- employment adversely affects his availability for work, pursuant to Wis. Stat. � 108.04(2)(a) and Wis. Admin. Code DWD � 128.01(2)(a). Claimants who are self-employed are not automatically disqualified from unemployment insurance eligibility; still, they must meet the general availability for work requirements of the above-cited provisions.

This matter only became an issue because the employe had indicated on a weekly claim certification that he was self-employed. His self-employment turned out to consist of two factors. First, he was selling his personal automobile. Second, he was selling his "body," that is, he was selling the labor his body provided to potential employers. Obviously, this does not constitute self-employment such as would interfere with a claimant's availability for work within the meaning of Wis. Admin. Code � DWD 128.01(2)(a). The commission therefore finds that, as of week 20 of 2000, the employe was not self-employed and therefore was able to work and available for suitable work, within the meaning of Wis. Stat. � 108.04(2)(a) and Wis. Admin. Code Ch. DWD 128.

DECISION

The appeal tribunal decision and initial determination are reversed. Accordingly, the employe is eligible for unemployment insurance as of week 20 of 2000, if he is otherwise qualified.

Dated and mailed September 11, 2000
keegaje.urr : 105 : 1 PC 712.6 AA 265

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: As indicated above, the commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision. The administrative law judge indicated that he had not yet asked the employe sufficient questions to fully gauge the employe's credibility. Nonetheless, the administrative law judge did not seem to disbelieve the employe's assertions regarding what his alleged self-employment consisted of. In addition to speaking with the administrative law judge, the commission listened to the hearing tape and reviewed a transcript thereof, in concluding that the employe's testimony as to his availability for work was worthy of credence.

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