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

DANAYA S ANDERSON, Employee

HEARTLAND EMPLOYMENT SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02608121MW


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

The employer filed a timely request for hearing on an initial determination allowing benefits to the employee. By proper notice, hearing was scheduled for Monday, August 19, at 10:30 a.m. The employee failed to appear at the hearing, and the issue is whether that failure was with good cause, under Wis. Stat. § 108.09(4). The commission concludes that it was, and so reverses the appeal tribunal decision.

The hearing in question was scheduled for Monday, August 19, 2002. On the Saturday before the hearing, the employee's ten-month-old daughter became ill. The employee attempted over the weekend to arrange for child care for her infant daughter, so she would be able to attend the hearing the following Monday. She was unable to do so, however, and so missed the hearing. Finally, although she was late in doing so, the employee did contact the hearing office shortly before the scheduled hearing to indicate she would be unable to appear.

By operation of Wis. Stat. § 108.09(4), a party will be excused from a failure to appear at hearing if the failure was with good cause. The courts have defined the "good cause" standard to be no higher than "excusable neglect," that is, the neglect a reasonably prudent person would exercise in similar circumstances. The employee's reason for missing the hearing cannot be said to exceed this standard, however. The illness of one's infant child is good cause for missing a hearing, and the employee made reasonable efforts to find a babysitter for her child as soon as she knew the child was ill, so that she might be able to attend the scheduled hearing.

The commission therefore finds that the employee's failure to have appeared at the scheduled August 19, 2002 hearing was with good cause, within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code ch. DWD 140.

DECISION

The November 4, 2002 appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for de novo (new) hearing and decision on the merits.

Dated and mailed June 20, 2003
anderda . urr : 105 : 3    PC 712.5

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission conferred with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The administrative law judge found credible the employee's assertion that her daughter was ill, but not that the employee had contacted the hearing office before the hearing. Upon review of the matter, the administrative law judge conceded that the employee's assertion that she did contact the hearing office seemed credible, and he was unable to recall why he originally deemed that assertion not credible. The commission likewise concludes that the employee's assertion that she contacted the hearing office is credible. Even had she not, however, it remains a general principle that illness of a party or dependent of a party is good cause for a failure to appear at hearing.

cc: 
Carol Weidinger
Heartland of Milwaukee


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2003/06/27