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

JENNIFER F BRAUN, Employee

MILWAUKEE JOURNAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01606945MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On July 26, 2001 the Department of Workforce Development (department) issued an initial determination finding that the employee was discharged for misconduct connected with her employment. The employee timely requested an appeal and hearing. A hearing was scheduled for September 11 at 2:00 p.m. at the State Office Building in Milwaukee, Wisconsin. The employee did not appear. On September 11, 2001, ALJ Winderl issued a dismissal appeal tribunal decision dismissing the employee-appellant's request for hearing based on her failure to appear. The last date to timely appeal the appeal tribunal decision was October 2, 2001.

The employee's petition was received on October 3, 2001. The file does not contain an envelope associated with the petition, making it impossible to determine whether the petition was actually timely postmarked or delivered in person on October 3, 2001. Under Wis. Admin. Code § LIRC 2.015(5), an appeal containing no postmark is considered to have been mailed two-business days prior to receipt. Considering the October 3, 2001 receipt date, the appeal is deemed to have been filed on October 1, 2001, a day before the appeal deadline of October 2, 2001. The commission therefore finds that the employee filed a timely petition within the meaning of Wis. Stat. § 108.09(6)(a) and Wis. Admin. Code § LIRC 2.015(5).

The employee did not appear for the hearing scheduled on September 11, 2001 at 2:00 p.m. in the State Office Building in Milwaukee because she assumed the State Office Building had closed in light of the day's events. Although the employee did not telephone the Milwaukee Hearing Office to determine whether hearings were still being conducted that day, the employee's failure to confirm her hearing constitutes excusable neglect given the extenuating circumstances surrounding that day. The commission therefore finds that the employee- appellant failed to appear at a hearing scheduled on September 11, 2001, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4).

Consequently, the commission reverses the dismissal appeal tribunal decision and orders that a new hearing and decision be issued on the merits of the employee's employment separation.

DECISION

The commission accepts the employee's petition as timely under Wis. Adm. Code § LIRC 2.015(5). Accordingly, the appeal tribunal decision is reversed. The employee had good cause for failing to appear at the hearing. The matter is remanded to the department for a new hearing and decision on the merits of the case.

Dated and mailed November 28, 2001
braunje . urr : 135 : 1  PC 712.6

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner


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uploaded 2001/12/04