RANDALL A FIKE, Employee

LEATHEM SMITH LODGE CORPORATION
OF DOOR COUNTY, Employer

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:

The employer failed to appear at the hearing because the owner mismarked the calendar. The owner noted on his calendar that the hearing was Wednesday, June 8, 2005, when the hearing was actually on Tuesday, June 7, 2005. For nearly 50 years the commission has generally held that such mismarking of a calendar constitutes good cause for failing to appear. (1)  This is particularly true when there is a rationale for the mismarking. Here the employer wrote on the day adjacent to the actual day of the hearing. The commission has held that such failures fall within the scope of excusable neglect which constitutes good cause for failing to appear.

The commission therefore finds that the employer/appellant failed to appear at a hearing scheduled for June 7, 2005, but that such failure was with good cause within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code § DWD 140.

The decision of the administrative law judge is reversed. Accordingly, the employer/appellant's request for hearing is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed November 4, 2005
fikeran . urr : 132 : 1 : PC 712.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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(1)( Back ) Monarch Meat Packing Co. v. Krueger & Ind. Comm., (Cir. Ct. Mar. 21, 1958) (good cause found where employer marked July 18 as hearing date on calendar even though notice stated July 17 hearing date); Littlewood v. LIRC and Mainstream Records, Inc., Case No. 84-CV-1751 (Waukesha Co. Cir. Ct. March 21, 1985) (good cause found where employee mistakenly removed February page from his calendar and, as a result, marked hearing date as March 15 rather than February 15); Figueroa v. I.R. Construction Production Co., Inc., UI Hearing No. 8761715MW (LIRC July 14, 1987) (good cause found where employee marked March 11 as hearing date on calendar even though notice stated March 10 hearing date); Boym et al. v. Milwaukee Public Schools, UI Hearing No. 89606363MW (LIRC Aug. 9, 1990)(good cause found where employee's representative marked September 13 as hearing date on calendar even though notice stated September 6 hearing date, and space on calendar for September 6 immediately above space for September 13); Kuske v. Manion Outdoors Co., Inc., UI Hearing No. 89402143AP (LIRC Feb. 27, 1991) (good cause found where employee marked September 28 as hearing date on calendar even though notice stated September 27 hearing date).

uploaded 2005/11/07      

mis-marked calendar    mismarked calendar