Current through Register Vol. 48, No. 38, September 20, 2024
a) Failure of the appellant to appear at the
hearing at the time the hearing is scheduled before the Referee will result in
a dismissal of the appeal. If the hearing is scheduled to be conducted by
telephone or the appellant has been allowed or required to appear by telephone,
failure of the appellant to inform the Referee of the telephone number at which
he or she can be reached at that time or to answer the telephone at that number
will also result in dismissal of the appeal.
b) Failure of the appellee to appear at the
hearing at the time the hearing is scheduled or, if a hearing is scheduled to
be conducted by telephone or the appellee has been allowed or required to
appear by telephone, failure of the appellee to inform the Referee of the
telephone number where he or she can be reached at that time, or to answer the
telephone at that number, will cause the Referee to issue a decision based on
the evidence introduced by the appellant at the hearing and the evidence in the
record.
c) Failure of any witness
to appear at the hearing at the time that the hearing is scheduled or, if the
hearing is scheduled to be conducted by telephone or the witness has been
allowed or required to appear by telephone, a party's failure to inform the
Referee of the telephone number at which the Referee can, at the time of the
hearing, reach the witness, or the witness' failure to answer the telephone at
the number given to the Referee by the party seeking the witness' testimony,
shall cause the Referee to conduct the hearing with those parties and witnesses
who appeared in person or were available by telephone and to make his or her
decision based on the available testimony and evidence in the record.
d) If any party or witness shall refuse to
consent to the tape recording of the hearing by the Referee or refuse to take
the oath or affirmation when requested by the Referee, the participation of
that individual in the hearing shall be terminated and the hearing shall be
conducted as if the individual failed to appear.
e) If a party fails to appear and an adverse
decision is rendered, that party may, by letter or on the record, request
rehearing of the appeal from the Referee or from his or her supervisor,
provided that party has not filed an appeal to the Board of Review pursuant to
Section
2720.300. In the
event that such an appeal to the Board of Review has been filed, the rehearing
request will be denied. The following procedure shall be used:
1) Requests to rehear the appeal must be
filed no later than 10 days after the hearing or the date the party first knew
or should have known of the scheduled hearing, whichever is later, but in no
event beyond the time for filing a timely appeal to the Board of Review
pursuant to Section
2720.300(a);
e.g., the appellant does not attend a hearing because he or she claims not to
have received notice of the hearing, he or she does, however, receive a
decision that his or her appeal has been dismissed for failing to appear at the
hearing, his or her request for rehearing must be filed within 10 days after
this decision because, as a result of the dismissal of his or her appeal, he or
she should have known that he or she missed the scheduled hearing. The requests
must state the facts showing that failure to appear at the scheduled hearing
was either due to not having received timely notice of the hearing or for an
"exceptional reason" as set forth in Section
2720.240
and that either a request for continuance under that Section was improperly
denied or the failure to make the request for a continuance was caused by
reasons outside of the control of the party and by circumstances that could not
have been foreseen and avoided. Upon a party's request, the party shall be
treated as not having appeared at the hearing before the Referee and a
rehearing shall be granted if, in making the request, the party shows that, at
the time of the hearing, the party's Representative was participating in
another hearing before a Referee or Director's representative, the conflict was
not patently evident prior to the scheduled start of the party's hearing, and
no other reasonable accommodation could be made; except with respect to the
facts required to be shown, the request must be consistent with all other
provisions of this subsection (e).
2) Based on the statements in the request and
the facts of the record:
A) If the request
meets the requirements of subsection (e)(1), a hearing shall be scheduled with
notice to all parties (see Section
2720.205);
or
B) If the request fails to meet
the requirements of subsection (e)(1), the request shall be denied and a
written decision setting forth the reasons for the denial shall be issued. In
these cases, if an adverse decision on the merits was issued, a timely appeal
to the denial of a timely request for rehearing shall also constitute a timely
appeal on the merits of the matter.
3) At the start of the hearing, any party may
present its objections to the request. The Referee will consider all objections
and responses and supporting evidence, if any, and will grant or deny the
request for a rehearing at that time based on the preponderance of the
evidence. If the Referee denies the request, he or she will terminate the
proceedings. If the Referee grants the request, he or she will proceed to
conduct a hearing on the merits.
4)
If there is an objection to the request, the Referee's ruling will be on the
record, and will state the reasons for the ruling that grants or denies the
request. All denials of requests for rehearing shall be in writing.
5) If the party disagrees with the denial of
the request for rehearing, he or she must appeal the denial within the time and
in the manner set forth in Section 2720.300.
6) A decision to grant a rehearing is not
immediately subject to appeal but may be raised by the aggrieved party if an
appeal is filed to the decision on the merits of the matter.
EXAMPLE: A decision is made to grant a rehearing to an
appellant. After the rehearing, a decision is made in favor of the appellant.
The appellee may appeal this decision to the Board of Review. In his appeal to
the Board of Review, the appellee (now the appellant) may request that the
Board of Review rule on the propriety of the granting of the rehearing before
it goes to the merits of the matter.
