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

TIMOTHY A STEPHAN, Employee

WES TOWER COMMUNICATIONS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005663MD


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

Hearing on the merits in this case was scheduled for November 22, 2004. The employer failed to appear at the hearing, and the issue is whether the employer had good cause for that failure, within the meaning of Wis. Stat. § 108.09(4). The commission concludes that it did, and so reverses the appeal tribunal dismissal decision.

Notice for the November 22 hearing was via November 13, 2004 hearing notice. The employer was to appear at the hearing by telephone, and the notice instructed the employer to immediately contact the hearing office if the number listed for the employer on the notice were incorrect. The employer's representative did contact the hearing office and, according to a note from a department representative, gave the contact number as 847-845-8400. On the date of hearing, the administrative law judge attempted to reach the employer at that number, but was unable to do so.

In fact, the employer's telephone number is 847-545-8400. One of two things must have happened. Either the employer's representative mistakenly gave the department representative the telephone number 845-8400, or the department representative mistakenly wrote down 845-8400 instead of 545-8400. In the latter case, no fault whatsoever is attributable to the employer for its failure to appear. In the former case, the employer's representative is guilty at worst of a momentary confusion of numbers when reciting the employer's telephone number to the department representative.

Good cause for missing an unemployment insurance hearing can include even "excusable neglect," that is, the neglect a reasonably prudent person might exercise in similar circumstances. Given that the number 847-545-8400 already includes two sets of the sequence "8 4," the commission must conclude that the employer's representative's mistake (assuming the representative made it) meets this standard.

The commission therefore finds that the employer had good cause for missing the November 22, 2004 hearing in the case, within the meaning of Wis. Stat. § 108.09(4).

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 March 2, 2005
stephti . urr : 105 : 4   PC 712.4

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

 

NOTE: The commission's reversal was not based upon a differing credibility assessment from that made by the administrative law judge. Since no hearing was actually held, there was no issue as to witness credibility.

 

cc: Wes Tower Communications


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uploaded 2005/03/04