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

MICHELLE  M  DAHMS, Employee

GLEASON CORPORATION OF ALGOMA, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03403105AP


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 employee timely requested a hearing on the adverse initial determination in the case (which held that the employee had failed to make an adequate work search in week 26 of 2003). By proper notice, hearing was scheduled for 9:00 a.m. on August 28, 2003. The employee was to appear at the hearing by telephone. She did not appear at the hearing, and the issue is whether she had good cause for that failure, within the meaning of Wis. Stat. § 108.09(4)(d). The commission concludes that she did, and so reverses the appeal tribunal decision.

The administrative law judge attempted to contact the employee between 9:00 a.m., the scheduled hearing time, and 9:15, but the employee's telephone line was busy throughout that time. The employee's line was busy due to her receipt of a telephone call from her daughter's father, long distance, with whom she had not spoken since 1999, when their daughter was two years old. The conversation took longer than the employee expected and, upon its completion, the employee contacted the hearing office and was informed that her case had just been dismissed.

Good cause for a failure to appear at hearing is no more than "excusable neglect," that is, the negligence a reasonably prudent person would exercise in similar circumstances. The commission concludes that a first contact from the father of one's child in four years meets this standard. The administrative law judge, in dismissing the employee's appeal, reasoned that the employee should have explained the situation to the father and disconnected the call. That of course is what the employee should have done, but the good cause standard for a failure to appear at hearing contains within it a certain degree of negligence; by definition, therefore, good cause for a failure to appear can exist when a party has failed to do what the party should have done. Further, the employee immediately contacted the hearing office after the call from the father in order to try to make the hearing.

The commission therefore finds that the employee's failure to appear at the scheduled August 28, 2003 hearing was with good cause, within the meaning of Wis. Stat. § 108.09(4)(d).

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 November 26, 2003
dahmsmi . urr : 105 : 2   PC 712.4

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the commission concludes as a matter of law that the undisputed factual circumstances surrounding the employee's failure to appear constitute good cause for that failure.


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uploaded 2003/12/03