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

BRANDEE S ROYSTER, Employee

KELLY SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01608391MW


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 November 21, 2001, the Department of Workforce Development (Department) sent hearing notices to both parties scheduling a hearing for Monday, December 10, 2001 at 9 a.m. at the State Office Building in downtown Milwaukee. Upon timely receipt of the hearing notice, the employer's representative, its senior staffing supervisor, read the hearing notice and believed that the hearing was scheduled for 9:30 a.m. on December 10, rather than its actual stated time of 9 a.m. Acting on this misunderstanding, the employer's representative appeared at the hearing office at approximately 9:28 a.m. However, by this time the employer/appellant's hearing had been dismissed for non-appearance.

The issue for review is whether the employer had good cause for its failure to appear at the hearing scheduled for December 10, 2001, within the meaning of Wis. Stat. § 108.09(4)(d). The relevant statute provides that an appeal may be reinstated and a hearing held on the merits if the appellant establishes that the failure to appear was with good cause. Good cause generally relates to circumstances which are beyond the individual's control, which are substantial or which otherwise prevent or make it unreasonable for the individual to appear. The commission recognizes that good cause may include excusable neglect or the neglect of an otherwise prudent person.

The employer's representative offered two different explanations as to when she realized that she misread the hearing notice. She initially stated on the late arrival questionnaire that she did not realize the hearing was scheduled for 9:00 a.m. until she arrived at the hearing office and looked at the hearing notice. However at the hearing scheduled on her nonappearance, the employer's representative testified that she reported to her office at approximately 8:55 a.m. and then realized that the hearing was at 9 a.m. and not 9:30 a.m. The employer then immediately left her office for downtown Milwaukee without calling the hearing office to state that she would be late. The representative did not realize she could telephone the hearing office to state she would be running late.

Based on either explanation, the fact remains that the employer's representative misread the hearing notice and as such did not appear in a timely fashion for the hearing. Applying the good cause standard defined above, the commission concludes that the employer's failure to appear was not with good cause. While the employer's representative may have made an honest and regrettable mistake, the commission is satisfied that a reasonably prudent person under similar circumstances would have read the hearing notice again, sometime prior to actually planning for the hearing day. The commission is satisfied this misreading which led to the representative's misunderstanding of the actual scheduled hearing time does not constitute excusable neglect or good cause within the meaning of statute.

The commission therefore finds that the employer/appellant failed to appear at a hearing scheduled for December 10, 2001, and that such failure was not with good cause within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code Chapter DWD 140.

DECISION

The appeal tribunal decision is reversed. The employer/appellant's failure to appear at a scheduled hearing was not with good cause. Another hearing will not be granted. The initial determination shall remain in effect.

Dated and mailed May 1, 2002
roystbr . urr : 135 : 8  PC 712.2

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


MEMORANDUM OPINION

The commission did not confer with the ALJ before determining to reverse the appeal tribunal decision. The commission's determination to reverse the appeal tribunal decision is not based upon differing credibility. Rather the commission concludes that the employer's misreading of the hearing notice does not constitute good cause within the meaning of the law.


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uploaded 2002/05/10