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

RENEE M KING-WEST, Employee

ST AEMILIAN-LAKESIDE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03607581MW


The Department of Workforce Development (department) issued a determination on July 8, 2003, finding that the employee voluntarily terminated her employment and her quitting was not within any exception to allow for immediate payment of unemployment insurance benefits, within the meaning of Wis. Stat. § 108.04(7).

The employee timely appealed and a hearing was scheduled for July 31, 2003. The employee/appellant appeared at the hearing but the employer/respondent did not. On August 14, 2003, an appeal tribunal decision for hearing no. 03606425MW was issued reversing the initial determination and finding that the employee's quitting was with good cause attributable to the employer within the meaning of Wis. Stat. § 108.04(7)(b).

The employer subsequently submitted a letter explaining its failure to appear and requesting a new hearing. On August 21, 2003, the August 14, 2003 appeal tribunal decision was set aside pending resolution of the failure to appear matter.

On August 28, 2003, both the employee and employer appeared for hearings scheduled on the failure to appear issue and, provisionally, the merits of the separation.

On September 18, 2003, the appeal tribunal decision for hearing no. 03607581MW was issued, finding good cause for the employer's failure to appear. At the same time, the appeal tribunal decision for the provisional hearing on the merits, hearing no. 03608337MW, was issued finding that the employee's quitting was not within any exception to allow for unemployment insurance benefits within the meaning of Wis. Stat. § 108.04(7)(a) and establishing an overpayment of $3,948.00 that the employee was directed to repay.

The employee timely petitioned for commission review. For this failure to appear issue, 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

On July 24, 2003, hearing notices were mailed to the employee and the employer, at their addresses of record, apprising them of the July 31, 2003 hearing. While the employee appeared at the hearing, the employer did not. In explaining the failure to appear, the employer's only witness, the human resources director/chief financial officer, contended that the employer did not receive the hearing notice. The human resources director/chief financial officer does not handle the mail when it is first delivered to the business. Instead, the mail is sorted by "whoever" is working in reception on a given day and unemployment matters are forwarded to the human resources department.

The issue before the commission is whether the employer established good cause for its failure to appear at the July 31, 2003 hearing.

Section 108.09(4)(e) of the Wisconsin statutes provides, in part, as follows:

1. If the respondent fails to appear at a hearing held under this section but the appellant is present, and due notice of the hearing was mailed to the respondent's last-known address, the appeal tribunal shall hold the hearing and shall issue a decision under sub. (3)(b) unless sub. 2. applies. (1)

3. . . . If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision unfavorable to the respondent is mailed under subd. 1., the appeal tribunal may set aside the original decision and the department may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. . . . If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and, if necessary, reinstating the decision which was set aside. . . .

The employer contended that it did not appear at the July 31, 2003 hearing because it did not receive the hearing notice. There is a rebuttable presumption that mail properly addressed is received. State ex rel. Flores, 183 Wis.2d 587, 612 (1994). As such, it is the employer's burden to establish that the notice was not received. The human resources director/chief financial officer was only able to provide first hand testimony as to whether the notice was forwarded to her by "whoever" was responsible for sorting the mail. The employer failed to present any firsthand evidence from the worker or workers responsible for receipt of mail at the employer's business. Given this, together with the fact that the hearing notice was never returned to the department as undeliverable, the employer failed to rebut the presumption that the notice was properly delivered to its address of record.

The commission therefore finds that the employer/appellant failed to appear at a hearing held on July 31, 2003, and that such failure was not with good cause, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The appeal tribunal decision is reversed. The employer/appellant's request for a hearing on the merits is dismissed. The appeal tribunal decision for hearing no. 03608337MW is set aside. The appeal tribunal decision issued on August 14, 2003, hearing no. 03606425MW, is reinstated. The employee is eligible for benefits, if otherwise qualified and there is no overpayment as a result of this decision.

Dated and mailed July 23, 2004
kingwre . urr : 150 : 8  PC 712.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not confer with the administrative law judge prior to issuing a reversal in this matter. The reversal is not based on any credibility assessment but on the fact that the employer failed to present sufficient evidence to establish that it did not receive the notice of hearing. The employer should have brought the individual or individuals responsible for opening the mail to the hearing to testify as to whether the notice was actually received. Without such firsthand evidence, the commission concludes that the employer failed to properly monitor its mail and, consequently, is not entitled to a decision on the merits from the August 28, 2003 hearing.



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


Footnotes:

(1)( Back ) Sub. 2. deals with the situation in which the failure to appear explanation is received before the appeal tribunal decision is issued.


uploaded 2004/07/27