JUSTIN P FITZGERALD, Employee

RINEHART INDUSTRIES, Employer

On March 4, 2005, the Department of Workforce Development issued an initial determination which held that in week 6 of 2005, the calendar week ending February 5, the employee was discharged but not for misconduct connected with his employment and unemployment insurance benefits were allowed.

The employer filed a timely request for a hearing on the determination and a hearing was scheduled for April 12, 2005. The employer appeared for that hearing but the employee/respondent did not. The hearing, originally assigned hearing number 05001357JV, was conducted and closed. That same day, the department received a letter from the employee explaining his failure to appear. The administrative law judge directed that a hearing be held on the failure to appear issue prior to his issuance of a decision for the hearing he had conducted.

The failure to appear hearing was conducted on May 11, 2005. The administrative law judge who held that hearing, issued a decision on May 12, 2005 under hearing number 05001357MD finding that the employee's failure to appear was not with good cause, the employee's request for a rehearing on the merits was denied and an appeal tribunal decision was to be issued based upon the April 12, 2005 hearing conducted on the merits of the separation of employment.

On May 18, 2005 the appeal tribunal decision on the merits, newly assigned to hearing number 05002295MD, was issued finding that the employee was discharged for misconduct connected with his employment and had been overpaid unemployment insurance benefits totaling $3,752.00 that he was directed to repay to the department.

The employee timely petitioned arguing that he should be given an opportunity to present his case and to establish that his discharge was not for misconduct.

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:

Upon the hearing office's receipt of the employer's timely appeal, a confirmation of appeal was mailed to both the employer and the employee on March 21, 2005. The confirmation directed participants to arrange time off from every day affairs to attend a hearing. It further cautioned that "if you, your representative and/or witnesses have conflicts attending a hearing, notify the hearing office immediately."

At approximately the same time of the employee's receipt of the confirmation of the employer's appeal, the employee learned that he needed to travel to Fort Lewis, Washington to take care of his daughter because his daughter's mother was on field maneuvers and lacked child care for the entire month of April, 2005. The employee did not contact the hearing office to request that the hearing not be scheduled in April.

On April 2, 2005, the hearing office mailed notices of the in-person hearing in Janesville, Wisconsin at 9:00 a.m. on Tuesday, April 12, 2005. On April 5, 2005, the employee telephoned the hearing office notifying it of his conflict in attending the hearing because he had to care for his daughter. He was directed to write a letter explaining his failure to appear. The employee did so.

Wis. Stat. § 108.09(4)(d) and (e) provides that a party who misses a hearing is entitled to further hearing if the party establishes good cause for its failure to appear.

Thus, the issue to be decided is whether the employee had good cause for his failure to appear at the hearing scheduled on April 12, 2005.

In this case, while the employee did not notify the hearing office to avoid scheduling the hearing in April and the commission has used a party's failure to provide dates to avoid together with the party's failure to present an exceptional reason for a postponement request to deny good cause for its failure to appear (See Wipperfurth v. Ferrellgas, Inc., UI Dec. Hearing No. 04002041MD (LIRC July 15, 2004), the circumstances of each case must be reviewed individually to determine whether a failure to appear is with "good cause." The courts have defined the good cause standard to be that of "excusable neglect," namely the neglect a reasonably prudent person might commit in similar circumstances. Kautzman v. Abraham Isaac & Jacob, UI Dec. Hearing No. 98606107MW (LIRC December 23, 1998).

With little notice, the employee had to travel to Washington to provide one month of childcare for his daughter while the daughter's mother was in the field on military maneuvers. While he did not contact the hearing office in the 12 days between its mailing of the confirmation and the hearing notice, given the attendant circumstances, the commission finds that the employee's failure was, at worst, excusable neglect. Further, almost immediately upon his receipt of the hearing notice, he notified the hearing office of the conflict. The only alternative presented to him at that time was to write a letter explaining his failure to appear which he did.

The commission therefore finds that the employee had good cause for his failure to appear within the meaning of Wis. Stat. § 108.09(4)(e) and Wis. Admin. Code § DWD 140.

The May 12, 2005 appeal tribunal decision is reversed. The May 18, 2005 appeal tribunal decision, for hearing number 05002295MD, is set aside. The matter is remanded to the department for a de novo (new) hearing and decision on the merits.

Dated and mailed July 12, 2005
fitzgju . urr : 150 : 1   PC 712.5

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: The commission did not confer with the administrative law judge prior to reversing her decision. The commission's reversal is based on a differing conclusion of law, not a differing assessment of credibility.

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

uploaded 2005/07/15