BEFORE THE
STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the
unemployment benefit claim of

MARCI  E. KUSKE, Employe

Involving the account of

MANION OUTDOORS COMPANY, INC., Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 89-402143 AP


On September 29, 1989, an Administrative Law Judge for the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter concluding that the employe had failed, without good cause, to appear at the scheduled September 27, 1989 hearing, and that she had not been discharged but had quit her job, and such quitting was not for any reason which would allow the immediate payment of unemployment benefits. Accordingly, the employe was held ineligible for benefits. This decision further resulted in a finding that the employe had been paid benefits totalling $454, for which she was not entitled.

The employe subsequently filed a timely petition for Commission review of the Administrative Law Judge's decision. On October 17, 1990, pursuant to authority granted in section 108.09 (6)(d) of the statutes, the Commission ordered that additional testimony be taken before an Administrative Law Judge, acting as a Deputy for the Commission, with respect to the employe's reason for failing to appear at the September 27 hearing, and provisionally, with respect to the merits of the case. Such hearing was held on November 14, 1990. The employer did not appear at that hearing.

Based on the applicable law, records and evidence in this case, and after consultation with both Administrative Law Judges concerning the credibility and demeanor of the parties, the Commission hereby makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

EMPLOYE FAILURE TO APPEAR.

The initial hearing on the merits of this case was scheduled for September 27, 1989. The employe did not appear for that hearing. However, she failed to appear for that hearing because she had mismarked her calendar, inadvertently noting that the hearing would be on September 28, 1989. The employe reported for the hearing at the specified time on September 28, the date she believed the hearing was to take place. She subsequently provided her local unemployment office with copies of both her personal and business calendars, on which she had inaccurately documented the date of the hearing.

The issue presented is whether the employe had good cause for her failure to appear at the September 27 hearing.

It has been held that the term "good cause" is substantially equivalent to "excusable neglect." Judith Osmanski v. DILHR, case number 578-888 (Milwaukee County 1983) and Donald W. Littlewood v. LIRC and Mainstream Records, Inc., case number 84-CV-1751 (Waukesha County 1985). In Littlewood, a case very similar to this case, the employe failed to appear at the scheduled hearing because he had mismarked the date of the hearing on his calendar. The court found good cause for his failure to appear. The court stated that to determine whether good cause existed, it had to be determined:

1. Whether the failure to appear was a result of "excusable neglect" (i.e., neglect or negligence which is not so egregious or exacerbated as to be inexcusable);

2. If so, whether he acted to rectify his non-appearance within a reasonable time; and

3. Whether prejudice might result to the opposing side if the employe were permitted to testify on the merits. Id.

The court found that the employe's mismarking of the calendar was no so aggravated or unusual as to be inexcusable, there could be no question but that the employe proceeded within a reasonable time to take steps to correct his fault by appearing at the hearing office the first thing on the morning after the hearing, and that scheduling another hearing on the merits and allowing the employe to testify would result in no prejudice to the employer other than having the minimal inconvenience of having to appear at an extra hearing.

As the facts presented in this case are virtually identical to those in Littlewood, the Commission therefore finds that the employe had good cause for her failure to appear at the September 27, 1999 hearing, within the meaning of section 108.09 (4), Stats., and Chapter ILHR 140 of the Wisconsin Administrative Code.

MERITS

The employe worked about 15 weeks as the executive director of the International Game and Fish Cooking Association (IGFCA) which was operated under the auspices of the employer, a publishing and television production business. Her last day of work was July 6, 1989 (week 27), when a termination of her employment occurred.

The issue presented on the merits of this case is whether the employe quit or was discharged, and whether she is eligible for benefits based on such termination of the employment relationship.

As executive director of the IGFCA, the employe was responsible for coordinating a world championship wild game cookoff that was to be held in Sioux City, Nebraska, July 15 through July 17, 1989. That cookoff was cancelled by the employer.

On the employe's last day of work, she and the employer became involved in a dispute concerning the cancellation of the world championship cookoff and the employer told her to "get out". After stating this, the employer then escorted the employe to her desk, watched her clean it out, and then walked her to the front door. After being escorted out, the employe remembered that she had a key belonging to the employer. As she opened the door to return the key the employer was at the door and demanded the key.

The employe did not terminate her employment but was discharged by the employer.

At the initially scheduled hearing the employer presented testimony that the employe had quit. However, the Commission rejects this testimony in favor of the employe, whose account of her separation was presented in great detail and was supported by her daily written notes regarding her employment activities. The Administrative Law Judge provided the Commission with no basis to conclude that it was erroneously assessing the credibility of the witnesses. The employer has provided no explanation for its failure to appear at the November 14, 1990 scheduled hearing.

The employer has the burden of proving that an employe's discharge constituted misconduct connected with her employment. The employer did not meet that burden. In fact, the employer conceded at the initial hearing that if it was decided that there was a discharge, that discharge was not for misconduct connected with the employe's employment.

Under the circumstances, the Commission therefore finds that in week 27 of 1989, the employe did not quit but was discharged by the employer, and such discharge was not for misconduct connected with her work within the meaning of section 108.04 (5) of the Statutes.

DECISION

The decision of the Appeal Tribunal is reversed. Accordingly, the employe is eligible for benefits, if she is otherwise qualified. No repayment of benefits is required.

Dated and mailed  February 27, 1991
125 : CD8535   PC 712.2   - Hearing, Failure To Appear - mis-marked calendar - mismarked calendar

/s/ Kevin C. Potter, Chairman

/s/ Carl W. Thompson, Commissioner

/s/ Pamela I. Anderson, Commissioner


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