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

BARBARA L BRICE, Employee

TWIN OAKS COUNTRY LODGE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03400444AP


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 department had scheduled hearing on the issue of the employee's separation from employment and, by appropriate notice, hearing was scheduled for 8:00 a.m. on January 31, 2003. The employer's owner failed to appear at the hearing, and the issue is whether she had good cause therefor. The commission concludes that she did, and so reverses the appeal tribunal decision.

The employer is a hotel in Door County. The owner of the hotel lives in Green Bay, approximately 80 miles away. The employer's owner was to appear at the January 31 hearing by telephone, and gave the hotel number as the contact number for the hearing. The owner nevertheless stayed at her home the evening of January 30, intending to drive to the hotel early the next morning. Although the owner could not recall exactly when she left for the hearing on the morning of January 31, she did leave in sufficient time to arrive on time at the hotel for the hearing. She had taken the inclement weather into account, but the snowstorm that morning was worse than had been predicted, even causing the closings of local schools on that day.

A party who misses a scheduled unemployment insurance hearing is entitled to rehearing if the party had good cause for its failure. The courts have defined good cause to be no more than "excusable neglect," that is, the neglect a reasonably prudent person would have exercised in similar circumstances. The failure by the employer's owner in this case falls within this standard. She took into account a certain degree of inclement weather, and had no way to know that the weather would be worse than predicted. The "good cause" standard does not require parties to plan for so-called "worst case scenarios," and the owner's actions in this case were not so unreasonable as to warrant a finding of no good cause for her failure to appear at the January 31, 2003 hearing.

The commission therefore finds that the employer's failure to appear at the January 31, 2003 hearing was with good cause, within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed July 17, 2003
briceba . urr : 105 : 2   PC 712.3

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The commission's reversal is not based upon a differing assessment of credibility from that made by the administrative law judge. Rather, as a matter of law, once the administrative law judge made the determination that the snowstorm was the proximate cause of the employer's failure to appear, speculation as to steps the employer previously could have taken to avoid missing the hearing because of the predicted inclement weather became irrelevant.


 

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