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


KEVIN W HODGE, Employe

MINNESOTA EPILEPSY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98200114EC


FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue in this case is the employer's failure to have appeared at a scheduled February 23, 1998 hearing in the case. The administrative law judge found that the employer had good cause for its failure to have appeared at that hearing. The commission disagrees, and so reverses the appeal tribunal decision.

On January 8, 1998, the Department of Workforce Development issued an initial determination which held that the employe's quit was not for a reason allowing the payment of benefits. The employe timely requested a hearing on the adverse initial determination. By February 5, 1998 notice to both the employe and employer, hearing was scheduled for February 23, 1998. The employer did not appear at the hearing; the employe did, so the administrative law judge properly took the employe's testimony on the merits. Shortly thereafter, the employer asked for rehearing, which request the department granted, resulting in the March 20, 1998 appeal tribunal decision holding that the employer had good cause for its failure to have appeared at the February 23, 1998 hearing.

The employer was the respondent in the proceedings before the administrative law judge. When an appellant appears at a scheduled hearing, but the respondent does not, the administrative law judge goes ahead with the hearing as scheduled. For a respondent to obtain rehearing, it must establish that its failure to have appeared at the original hearing was for good cause. The courts have defined good cause as excusable neglect, that is, the neglect a reasonably prudent person might commit in similar circumstances. In this case, the employer did not appear at the February 23 hearing because the employer's general manager did not know of the hearing until the time that the hearing was over. The notice of the hearing was properly delivered to the employer's establishment. However, the individual receiving the notice simply placed the notice in her desk without in any way attending to it or forwarding it to an appropriate individual. She terminated her employment at about the time the hearing was held. It was only after she left that someone going through her desk found the notice of hearing.

The employer's failure to appear at the hearing was due to its having filed away the hearing notice and then doing nothing about it until after the hearing had been held. This failure falls short of the excusable neglect standard stated above. Simply filing away a hearing notice, and doing nothing more about it, is not the excusable neglect a reasonably prudent person would commit. As the administrative law judge indicated, finally, the employer is responsible for the actions [and omissions] of its employes.

The commission therefore finds that the employer did not have good cause for its failure to have appeared at the scheduled February 23, 1998 hearing in this matter, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The April 9, 1998 decision in this matter is set aside.(1)  The March 20, 1998 appeal tribunal decision in this case is reversed. This matter accordingly is remanded to the Department of Workforce Development for further proceedings consistent with this decision.

Dated and mailed: June 8, 1998
hodgeke.urr : 105 : 1 PC 712.1

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

James A. Rutkowski, Commissioner

NOTE: It appears that, following the March 20, 1998 appeal tribunal decision, the department issued an April 9, 1998 appeal tribunal decision holding that the employe did not have good cause attributable to the employer for his quit of employment. If that is the case, then the effect of the commission's decision is to void the April 9, 1998 decision and return this case to its status just after the February 23, 1998 hearing. The administrative law judge from that hearing should issue a decision on the merits of the separation, of course taking into account only the evidence adduced at the February 23 hearing.

The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal of the appeal tribunal decision is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the circumstances of the employer's misplacement of the hearing notice in this case as a matter of law do not constitute good cause for the employer's failure to have appeared at the February 23 hearing.


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Footnotes:

(1)( Back ) (This sentence was added by a technical amendment after the decision was issued.)