JAMES W JORDAN, Employee

U W MADISON, Employer

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:

On September 13, 2003, the department issued an initial determination unfavorable to the employee. The employee filed a timely appeal and, on October 9, 2003, the department notified the parties that a hearing would be held on October 21, 2003. The employer and employee both appeared at the hearing, but it could not be completed that day and had to be continued. The employer's attorney provided the administrative law judge with his name and address and requested that copies of future documents be sent to him. However, the notice for the continued hearing was sent to the employer, with no separate copy to its attorney. Only the employee appeared at the continued hearing, which was held on December 16, 2003, and on December 29, 2003, the appeal tribunal decision issued a decision resolving the matter in the employee's favor.

The employer requested a new hearing on the ground that it had not received notice of the continued hearing and therefore had good cause for failing to appear. Based upon that assertion, the appeal tribunal decision was set aside and a hearing on the failure to appear issue was held. At the procedural hearing the employer's attorney testified that, while it was his understanding that someone at the employer did receive a copy of the hearing notice and attempted to notify him, he did not receive the hearing notice and was not aware of the hearing. The employer's attorney contended that, had he received the hearing notice, he would have been present at the continued hearing.

The question to decide is whether the employer had good cause for failing to appear at the continued hearing.

The commission has consistently held that the department has an affirmative duty to send a copy of an initial determination to a party's attorney of record, and that its failure to do so provides the appellant with a reason beyond its control for having failed to file a timely appeal. See, Leach v. A1 Heating & Air Conditioning Inc. (LIRC, July 17, 2003); Triplett v. Milwaukee Public Schools (LIRC, May 16, 2001); Prince Cable, Inc. (LIRC Feb. 23, 2001). The commission's reasoning was that a party is entitled to assume its attorney will receive a copy of the decision and will act on its behalf. Applying the same reasoning to the instant case, the commission concludes that the department's failure to send a copy of the hearing notice to the employer's attorney, in spite of his specific request that it do so, provided the employer with good cause for failing to appear at the hearing.

The commission, therefore, finds that the employer failed to appear at the hearing held on December 16, 2003, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

The decision of the administrative law judge is reversed. Accordingly, the appeal tribunal decision dated December 29, 2003, is set aside, and the matter is remanded for a new hearing and decision on the merits of the case.

Dated and mailed May 4, 2004
jordaja . urr : 164 : 1 PC 712.1

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not consult with the administrative law judge regarding witness credibility and demeanor. The commission's reversal of the appeal tribunal decision is not based upon any differing credibility assessment, but is as a matter of law.

cc: 
Attorney Richard Rice
Attorney John Dowling

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uploaded 2004/05/10