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

JOANN C ECKE, Employe

BURT AWARDS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 95002897WR

On June 17, 1995, the Department of Industry, Labor and Human Relations issued an initial determination which held that the employe quit but not for a reason which would allow the payment of unemployment benefits. The employe timely requested a hearing on the adverse initial determination, and hearing was scheduled for July 24, 1995 in Wisconsin Rapids, Wisconsin. The employe failed to appear at the hearing. Further hearing was scheduled for August 17, 1995. Following that hearing, a department administrative law judge issued an appeal tribunal decision on August 30, 1995, which held that the employe's failure to appear at the scheduled July 24, 1995 hearing was not for good cause.

The employe timely petitioned for commission review of the appeal tribunal dismissal decision. On January 5, 1996, the commission ordered the matter remanded for further hearing on the issue of the employe's failure to appear at the July 24 hearing and on the merits. That hearing was on January 22, 1996; the matter now is again before the commission, and ready for decision.

Based upon the applicable law and the evidence in this case, the commission issued the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe timely requested a hearing from an adverse initial determination, and hearing was scheduled for July 24, 1995 at 2:30 p.m. The employe failed to appear at that hearing, and the issue before the commission is whether she had good cause therefor. The commission concludes that she did, and so reversed the August 30, 1995 appeal tribunal decision.

The employe was in the midst of moving between houses when she received the July 14, 1995 notice for the July 24 hearing. The employe concedes that she timely received the notice; before she actually saw it, however, it was misplaced by a member of her family during the move.

The employe thought she should have received the hearing notice by July 24, so that morning she telephoned the department's unemployment compensation office in Wisconsin Rapids and asked why she had not yet received her hearing notice. A department representative told the employe that it sometimes takes six to eight weeks for a hearing to be scheduled, and that the employe should be receiving her hearing notice soon. Later that day, in fact around 2:30 p.m., the employe was in the office of one of the department's adjudicators, in order to reopen her benefit claim. At that time, she also asked him why she had not yet received her hearing notice. He also told her that that was not out of the ordinary, that it sometimes takes six to eight weeks (for a hearing notice to issue), and that she should be hearing soon (about her hearing).

Pursuant to sec. 108.09 (4), Stats., a party who misses a hearing must establish good cause therefor, in order to be entitled to an appeal tribunal decision on the merits of the benefit claim. "Good cause" has been found to be no stricter than "excusable neglect," or the neglect a reasonable, prudent person in the same circumstances might have exercised. Osmanski v. DILHR, Case No. 578-888 (Milwaukee Cty. Cir. Ct. 1-10-83). Excusable neglect exists when there is a reasonable basis for a claimant's failure, effort made within a reasonable basis for a claimant's failure, and no prejudice to opposing parties. Littlewood v. LIRC, Case No. 84-CV-1751 (Waukesha Cty. Cir. Ct. 3-21-85). The standard by definition allows a degree of neglect on the part of the party missing the hearing and, based upon all of the circumstances enumerated above, the commission must conclude that the employe meets it.

By itself, and depending upon the specific circumstances, the misplacing of a hearing notice during a move from one residence to another may or may not constitute good cause for a failure to appear at an unemployment compensation hearing. But in the case now before the commission, in addition to the hearing notice having been misplaced by a member of the employe's family during the family's move, there are the employe's two attempts to discover more information about the hearing she had requested. In both cases, the employe was told that hearing notices sometimes take six to eight weeks to issue, and that she would be receiving her hearing notice soon. In fact, this assertion by the department representatives was incorrect as it pertained to the employe. This is because the employe, having already been sent the hearing notice, in fact would not be receiving the notice the two department representatives indicated she would be receiving. These statements by the department representatives ended the employe's questioning as to the status of her request for hearing. When both the discussions with department representatives and the misplacing of the hearing notice by a member of the employe's family are taken together, the commission believes the employe had good cause for her failure to appear at the July 24, 1995 hearing, within the meaning of sec. 108.09 (4), Stats., and the commission so finds.

DECISION

The August 30, 1995 appeal tribunal decision is reversed. Accordingly, this matter is remanded to Administrative Law Judge Junceau for decision on the merits.

Dated and mailed: March 22, 1996
eckejo.urr : 105 : 1 PC 712.2

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ David B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge who conducted the August 17, 1995 hearing on the issue of good cause. He had indicated that credibility was not a factor in his decision-making; the commission agrees that it was not.

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