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

CARLOS A ESPINOSA, Employee

GRAND GENEVA LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601686RC


ORDER


By authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the February 13, 2004 appeal tribunal dismissal decision in this matter. The commission remands the matter for hearing and decision on the issue of the employee's failure to have appeared at the scheduled January 26, 2004 hearing in this case.

In a written petition filed by facsimile transmission three days after the issuance of the appeal tribunal decision, the employee indicated that he never received notice for the January 26 hearing. The administrative law judge found, based solely on the employee's written submission, that his assertion of non-receipt of the hearing notice was not credible. Due Process requires, however, that the employee be given a hearing on the matter. See, e.g., Nelson v. Marc Plaza Corp., Case No. 148-416 (Dane Cty. Cir. Ct. May 27, 1976) (" . . . the employe, having made prompt complaint about lack of notice of the hearing, is constitutionally entitled to another hearing to determine the issue of whether notice of the original hearing was received by him in the mail."). If the employee ultimately establishes that he had good cause for his failure to have appeared at the scheduled hearing, then the Department of Workforce Development will schedule hearing on the merits in due course. If the employee ultimately is unable to establish good cause for his failure to have appeared at the scheduled hearing, then the initial determination will stand.

Dated and mailed April 7, 2004
espinca . upr : 105 : 8   PC 712.1  PC 712.9

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

cc: 
Grand Geneva LLC - Lake Geneva, WI
Gilbert Medina


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uploaded 2004/04/12