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

CHRISTOPHER L RIVERO, Employee

CONSUMER COOPERATIVE ASSN OF EAU CLAIRE, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04200030EC


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 received notice of, but failed to appear at, the February 2, 2004, hearing on the merits of his claim. The issue is whether that failure was with good cause. The commission concludes that it was, and so reverses the appeal tribunal decision.

The employee was responsible for the care of his 3-year-old son on the day of hearing. His son had become ill the night before and, as a result, the employee scheduled and took him to an 11:30 a.m. appointment at the Marshfield Clinic. Th employee and his son traveled to the appointment by bus since the employee's car was not starting, and arrived back home at 12:15 p.m., 15 minutes before the hearing was scheduled to commence. The employee telephoned the department at or around 12:35 p.m., explaining that he would be unable to attend the hearing, and requesting a postponement.

The standard for failing to appear at a hearing is "good cause." This is, a party who misses a hearing is entitled to further hearing if the party establishes good cause for its initial failure to appear. The courts have defined this standard to be "excusable neglect," that is, the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC Dec. 23, 1998)

Based on the fact that the employee was responsible for caring for his ill 3-year-old son on February 2, 2004, the commission concludes that he had good cause for his failure to appear at the scheduled hearing. As the commission stated in Anderson v. Heartland Employment Services, Inc., UI Hearing No. 02608121MW (LIRC June 20, 2003), "The illness of one's infant child is good cause for missing a hearing."  This result is even more compelling here where, in contrast to Anderson, the employee's child became ill immediately before the hearing rather than several days before.

The commission concludes that the employee's failure to appear at the scheduled hearing was with good cause, within the meaning of Wis. Stat. § 108.094(4)(d), and that the employee is entitled to further hearing on the merits of his claim as a result.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the department for action in accordance with this decision.

Dated and mailed August 4, 2004
riverch . urr : 115 : 1   PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission did confer with the administrative law judge before reversing his decision. The administrative law judge indicated that he credited the employee's testimony that he had been responsible for the care of his ill 3-year-old son on February 2, 2004. The commission's reversal was not based upon a differing view as to the credibility of witnesses, but instead upon a differing interpretation of the relevant law.



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uploaded 2004/08/16