S.S. #: ***********

Employer's Name, Address & Reg. No.

E.R. #: 91-309-16

Board Case No.: 45-BR-11

Referee Case No.: 1581-CC-10

Date mailed to interested

parties: May 12, 2010 DECISION OF THE BOARD OF REVIEW

I. CASE HISTORY AND JURISDICTION

The administrator ruled the claimant eligible for unemployment benefits effective May 16, 2010, and notified the employer of its chargeability on June 18, 2010. On June 28, 2010, the employer appealed the administrator's decision to the Hamden office of the appeals division. The appeals division scheduled a hearing of the appeal for October 7, 2010, which the claimant and employer attended. By a decision issued on October 12, 2010, Principal Appeals Referee Herbert M. Pelley affirmed the administrator's ruling.

On October 27, 2010, the employer filed a timely motion to reopen the referee's decision. On November 12, 2010, Referee Pelley conditionally granted the motion to reopen and withdrew his decision. The appeals division scheduled a new hearing for December 6, 2010, which the claimant and employer attended. Referee Pelley issued a decision denying the motion to reopen on December 9, 2010.

The employer filed a timely appeal to the board of review on December 22, 2010. Acting under authority contained in General Statutes § 31-249, we have reviewed the record in this appeal, including the recording of the referee's hearing.

II. ISSUES

The referee ruled that the claimant was discharged for reasons other than wilful misconduct in the course of the employment and thus was not disqualified from receiving unemployment compensation benefits. The employer filed a motion to reopen the referee's decision and the referee denied that motion. In support of this appeal from the referee's decision, the employer contends that the referee erred in not granting its request for a postponement so that it could produce a first-hand witness who was unavailable for the referee's October 7, 2010 hearing.

The issues before the board are whether the employer was entitled to a further hearing, the nature of the separation, and whether it was disqualifying.

III. PROVISIONS OF LAW

Section 31-236(a)(2)(B) of the General Statutes provides that an individual shall be ineligible for benefits if he or she was discharged or suspended for wilful misconduct in the course of employment. Section 31-236(a)(16) of the General Statutes defines wilful misconduct, for purposes of the Connecticut Unemployment Compensation Act, as:

deliberate misconduct in wilful disregard of the employer's interests, or a single, knowing violation of a reasonable and uniformly enforced rule or policy of the employer, when reasonably applied, provided such violation is not the result of the employee's incompetence and provided further, in the case of absence from work, 'wilful misconduct' means an employee must be absent without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances on three separate instances within the twelve month period preceding his or her discharge. Except with regard to tardiness, each instance in which an employee is absent for one day or two consecutive days without either good cause for the absence or notice to the employer which the employee could reasonably have provided under the circumstances constitutes a 'separate instance.'

Section 31-236(a)(2)(A) of the General Statutes provides that an individual shall be ineligible for benefits if it is found that the individual has left suitable work voluntarily and without good cause attributable to the employer, until such individual has earned at least ten times his or her benefit rate, provided no individual shall be ineligible for benefits if the individual leaves suitable work for good cause attributable to the employer, including leaving as a result of changes in conditions created by the employer.

Section 31-248 of the General Statutes provides that any decision of a referee may be reopened on grounds of new evidence or if the ends of justice so require upon good cause shown.

IV. FINDINGS OF FACT AND CONCLUSION OF LAW

The record reveals that on September 27, 2010, the appeals division notified the parties of a hearing at the Hamden office of the appeals division on Thursday, October 7, 2010. On Friday, October 1, 2010, Andrew Bechard, the employer's first-hand witness, learned that his girlfriend was going to give birth. On October 1, 2010, the employer requested a postponement of the October 7, 2010 hearing because Bechard would not be available to participate.

Referee Pelley denied the employer's request for a postponement and advised the employer to send its next best witness. The employer complied with Pelley's directive and sent a witness who had no first-hand knowledge of the events leading to the claimant's separation.

At the referee's December 6, 2010 hearing on the employer's motion, Bechard testified that his girlfriend and newborn, who was born just after midnight on October 6, 2010, the day prior to the original hearing, were healthy and that he would have been willing to participate in the hearing by telephone. However, the employer did not ask him to participate because it had already made arrangements to send another individual based on Pelley's directive. Bechard was on approved leave until October 8, 2010, with an expected return-to-work date of October 11, 2010.

We have found good cause for not appearing at a referee's hearing due to compelling personal circumstances. See Frances Erba v. Univ. of CT. Health Ctr. St. of Ct., Board Case No. 13-BR-92 (1/30/92). In Antipoff v. Enterprise Rent-A-Car, Board Case No. 296-BR-10 (5/7/10), the employer's first-hand witness, who was the claimant's immediate supervisor, was unavailable the day of the hearing because his wife was going to be induced into labor to deliver their child on that day. The board found good cause for the witness' failure to appear because the witness was on paternity leave. We cannot expect an employer to compel the attendance of a witness who was on paternity leave, even if the witness hypothesized that he would have been available to participate in the hearing by telephone if the employer had requested. Accordingly, we conclude that the employer has demonstrated good cause for its witness's failure to attend the referee's October 7, 2010 hearing because his girlfriend was giving birth. The referee erred in denying the employer's motion.

V. DISPOSITION AND ORDER

We reverse the referee's December 9, 2010 decision on the employer's motion to reopen, and sustain the employer's appeal. We vacate the referee's October 12, 2010 decision. This matter is remanded to the referee to issue a new decision on the merits of the employer's appeal. The board does not retain jurisdiction. The referee will need to schedule a further hearing to take Bechard's testimony.

BOARD OF REVIEW

_______________________________

Lynne M. Knox, Chair,

ES Board of Review

In this decision, Board Member Elizabeth S. Wagner concurs.

LMK:AJP:mle