(b) Any appeal to the
referee from a claim determination or redetermination shall be filed in writing
at the unemployment insurance office in the county where the claimant resides
or in which the claimant was last employed. Deposit of an appeal in the mail,
addressed to such office, and a postmark date thereof within the time allowed
by law for filing appeals shall be deemed a timely filing.
(c) Written notice of hearing, specifying the
time and place thereof and those questions which are known to be in dispute,
shall be given or mailed to the parties fifteen or more days before the
hearing.
(d) When deemed necessary
by the referee, the parties may be directed in writing to appear before the
referee for a prehearing conference to consider:
(1) Simplification of the issues;
(2) Stipulation by the parties, subject to
the approval of the referee, as to all or a portion of the facts involved in
the proceedings, or the admission of documents, or both; and
(3) Such other matters as may aid in the
disposition of the proceedings.
The referee may make an order which recites the action taken
at the conference, the agreements made by the parties as to any of the matters
considered and which limit the issues for hearing to those not disposed of by
admissions or agreements of parties. The order, when entered, shall control the
subsequent course of the proceeding unless modified at the hearing to prevent
manifest injustice. If requested by either party, the order shall be made and
entered. The referee may direct either party to prepare the order.
(e) Hearings shall be
scheduled, held, and conducted as follows:
(1) Every hearing and other proceedings which
are held under this section shall be scheduled and heard promptly. In the
scheduling of proceedings in any case, consideration shall be given to the
prompt disposition of any appeal, the daily hours and days of the week
established for conducting proceedings on appeals, and the regular places of
hearing established within the State. Hearings shall be held in the county in
which the appeal is filed except as follows:
(i) where the office of unemployment
compensation appeals determines that it is necessary to hold the hearing in a
county other than the county in which the appeal is filed in order to conduct a
fair and impartial hearing; or
(ii) with the consent of the parties. Where
the hearing is to be held outside of the county in which the appeal is filed,
the parties shall be provided with notice of such hearing and shall be provided
with the opportunity to object to such hearing. Failure to object to such
hearing within the time specified in the notice shall be deemed consent by the
parties to such hearing.
(2) A proceeding in any case may be
rescheduled at the request of an interested party for reasonable
cause.
(3) A single hearing with
all parties appearing at the same time shall be held whenever possible.
Hearings may be held with the parties appearing in person, by telephone, or by
other suitable communication device approved by the office of unemployment
compensation appeals. Appearances by the parties in a case may be by a
combination of the foregoing when one or more of the parties is out of the
State, or the parties are in different intrastate locations. Where it is
impracticable to hold a single hearing, the evidence of the employer, the
claimant, or witnesses may be taken separately by the same or different
referees upon due notice to all interested parties. The decision shall be based
upon the complete record.
(4) The
proceedings shall be informal, fair, and impartial and shall be conducted in
such manner as may be best suited to protect the rights of all
parties.
(5) Hearings shall be
closed, except upon consent of the appearing parties.
(6) Prior to the opening of the hearing, the
referee shall identify himself or herself to the parties, ascertain the
identity of the parties, and insure that the parties have an opportunity to
examine the case record. All other communication between any party and the
referee, concerning a case before that referee, shall be recorded and made a
part of the record.
(7) The parties
appearing for a hearing before the referee shall be provided written
instructions which shall be included in the record, stating the procedures
which are to be followed in the conduct of the hearing.
(8) The referee shall open the hearings by
ascertaining and summarizing the issue or issues involved in the
appeal.
(9) The parties and their
representatives may examine or cross-examine witnesses, inspect documents, and
explain or rebut any evidence.
(10)
An opportunity to present argument shall be afforded the parties, which
argument shall be made part of the record.
(11) Where a party is not represented by
counsel or other agent, the referee shall give that party every assistance that
does not interfere with the impartial discharge of the referee's official
duties.
(12) The referee may
examine each party or witness to such extent as the referee deems
necessary.
(13) All oral testimony
shall be under oath or affirmation and shall be recorded.
(14) Any issue involved in the claim may be
considered and passed upon even though such issue was not set forth as a ground
for appeal. Issues not set forth in the notice of hearing, however, shall not
be heard or decided without first giving notice to the parties. In providing
notice to the parties of a new issue, the referee shall explain that issue to
the parties and advise them of their right to a recess, if they so desire, in
order to prepare for a hearing upon the new issue. If the parties are willing
to continue without a recess and to waive notice as required in subsection (c),
the referee may proceed to hear the new issue.
(15) Oral or written evidence of any nature,
whether or not conforming to the legal rules of evidence, may be accepted. Any
official record of the department, including reports submitted in connection
with the administration of the employment security law, may be included in the
record; provided, however, that the parties are given an opportunity to examine
and refute the same.
(16) The
parties may, subject to the approval of the referee, enter into stipulation as
to all or a portion of the facts involved in the proceedings. The referee may
make a decision on the basis of the information contained in such stipulations
or may take such further testimony or receive such further evidence as the
referee deems necessary.
(17) Upon
a showing of necessity by any party for the issuance of a subpoena to compel
the attendance of a witness or the production of accounts, records, and
documents at any hearing, a subpoena shall be issued by the referee.
(18) Witnesses subpoenaed for any hearing
before the referee shall be paid witness and mileage fees by the department in
accordance with section
383-99,
Hawaii Revised Statutes.
(19) Under
no circumstances shall parties to a hearing be granted witness fees. Fees for
subpoenaed witnesses shall be claimed within ten days from the date of the
hearing, certified to by the witness on appropriate forms and approved by the
referee.
(20) Information from
records of the department shall be furnished to any party, to the extent
necessary for the proper presentation of that party's case. All requests for
such information shall state as clearly as possible the nature of the
information desired and shall, unless made at a hearing, be in
writing.
(21) Any hearing before
the referee shall be continued when, in the judgment of the referee, such
action is necessary to afford the parties a reasonable opportunity for a fair
hearing. In the event of any such action, oral or written notice of the
subsequent time and place of the continued hearing shall be given the parties
or their representatives.
(22)
Failure of a party to appear at a hearing shall not result in the decision
being automatically rendered against that party. Unless there appears to be
good reason for continuing the hearing, the referee shall render a decision on
the basis of whatever evidence is properly before the referee. An application
for reopening filed by any such party in accordance with this section shall be
granted if it appears to the referee that the party has shown good cause for
failure to attend.
(23) Counsel or
other duly authorized agent representing a party may appear at any hearing or
take any other action which the party might take under this section.
Claimants authorizing a counsel or agent to appear in lieu of
the claimant shall submit the authorization in writing not later than the time
of the hearing.
The referee may for cause bar any person from representing a
party, in which event such action shall be set out in the record of the
proceedings.
(f)
The decisions of the referees shall be in writing and shall be signed by the
referee. They shall set forth the findings of fact, reasons for the decision,
and the decision, and shall be accompanied by a notice specifying the parties'
appeal rights from the decision.
(i) If an application
to reopen is granted, or if the referee reopens the decision on the referee's
own motion, the referee shall schedule the matter for further hearing and
notify the parties to the appeal in the manner provided in this section for
notice of hearings. The referee may reconsider the decision upon the evidence
already in the record or take such additional evidence as the referee deems
necessary in order to decide the case and give the parties a fair hearing. The
hearing shall be conducted in the manner provided in this section for conduct
of hearing.
(j) A referee's
decision shall be reopened only once by a particular party. A denial of an
application to reopen the decision shall not be subject to further reopening.
Thereafter, persons who have objection to the decision may obtain judicial
review in the circuit court as provided in section
383-41, Hawaii
Revised Statutes.
(l) The time to initiate
a judicial review shall run from the mailing or, if not mailed, delivery date
of the notice of further decision when a decision has been reopened, or the
mailing or, if not mailed, delivery date of a denial of an application to
reopen an appeals referee's decision.
(m) A referee shall be disqualified under the
following circumstances:
(1) The referee
shall not participate in the hearing of an appeal in which the referee has any
direct or indirect interest in the claim or the issues involved in the claim,
or in which the referee's relative by affinity or consanguinity within the
third degree is interested. The director shall be notified by the referee of
any such disqualification.
(2)
Whenever any party files with the director an affidavit that the referee has a
personal bias or prejudice against such party or in favor of any opposite
party, the affidavit shall state the facts and the reason for the belief that
bias or prejudice exists and shall be filed before the hearing, or good cause
shall be shown for the failure to file it within such time. The director or
duly authorized representative of the director may disqualify the referee from
proceeding in such matter where the director finds the issue of the referee's
impartiality is valid and a party's opportunity for a fair hearing is not
possible. The referee may disqualify himself or herself by filing with the
director a certificate that the referee deems himself or herself unable for any
reason to preside with absolute impartiality in a pending matter.
