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

DONALD J ASHFORD, Employee

EAGLE TECHNOLOGY GROUP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05606301MW


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.

Based on its review of this matter, the commission makes the following:

DECISION

The December 29, 2005, decision of the administrative law judge is set aside. This matter is remanded to the department for an administrative law judge to hear and decide whether the employee had good cause for his failure to appear at the December 28, 2005, hearing.

Dated and mailed February 8, 2006
ashfodo . urr : 115 : 6  PC 712.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

This matter involves the employee's appeal of four department determinations. These determinations were issued on August 19 and 20, 2005, and the employee filed timely appeals on August 25, 2005. The department mailed confirmation of timely appeal notices to the parties on August 31, 2005.

The next correspondence from the department to the parties were the hearing notices, which were dated and mailed on December 21, 2005, and stated that the hearings were scheduled to be conducted on December 28, 2005.

The employee did not appear for the December 28 hearings. The following day, the assigned administrative law judge (ALJ) dismissed all four appeals as a result.

The employee explains that he did not appear at the hearings because, when he found out on short notice that his new employer would be closed, he traveled out of town for the Christmas holiday and did not receive the hearing notices until he returned.

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).

Generally, it is a party's responsibility to have in place a reliable mechanism for monitoring time-sensitive correspondence from the department, and the failure to do so does not provide good cause for a failure to appear at a properly noticed hearing. See, Gruszkowski v. TOPS Club, Inc., UI Hearing No. 99604747MW (LIRC Sept. 23, 1999); Binns v. Action Marine, Inc., UI Hearing No. 04003017JF (LIRC Sept. 14, 2004).

However, as the commission recently noted in Fitzgerald v. Rinehart Industries, UI Hearing No. 05001357MD (LIRC July 12, 2005), the circumstances of each case must be reviewed individually, and it is at least arguable that there are certain mitigating circumstances here. For example, the employee had received no correspondence from the department for over three months at the time he went out of town for the Christmas holiday; the employee had short notice that he did not have to work over the Christmas holiday, so could not have notified the department of that fact immediately after receiving the confirmation of appeal notice, as the notice instructed; and the department mailed the notice for a hearing to be held seven days later, during Christmas week when mail delivery is slow and many people are away from home. On the other hand, the employee could have contacted the department as soon as he learned that he was going to be away, and could have established a reliable mail mechanism for monitoring department correspondence while he was gone.

There are facts which could certainly assist in the decision of the good cause issue here, e.g., the date the employee started working for the new employer, the date that he learned the employer would be closed for the Christmas holiday, the dates of the employee's absence from home, the date he actually received the hearing notice, and the efforts he made to contact the department.

Given these circumstances, this matter is remanded to the department for an evidentiary hearing on the good cause issue.



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


uploaded 2006/02/13