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

ANDY J JAMES, Employee

CASUAL MALE RETAIL STORE LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06003340JV


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision on September 19, 2006, dismissing the employee's request for hearing based on his failure to appear at the hearing scheduled to take place on September 18, 2006. The last day to file a timely petition for review was October 10, 2006. By letter postmarked October 10, 2006, and received by the hearing office on October 11, 2006, the employee asserted good cause for failing to attend the September 18, 2006, hearing. On October 12, 2006, the hearing office set aside the dismissal decision issued on September 18, 2006. On November 8, 2006, an appeal tribunal heard testimony on the issue of the employee's failure to appear at the September 18, 2006, hearing. After testimony had been taken, the appeal tribunal notified the parties that the employee's letter received by the department on October 11, 2006, would be treated as a petition for commission review. The hearing office did so because, pursuant to Wis. Stat. § 108.09(4)(d)3., the hearing office can act on a good cause letter only if it is received within the appeal deadline. The employee's letter was postmarked within the deadline, but received after the deadline. Therefore, the hearing office had no authority to set aside the dismissal decision. Accordingly, the commission hereby sets aside the dismissal decision issued on October 12, 2006. The commission has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The notice of hearing for the September 18, 2006, hearing was mailed on September 6, 2006, to the employee's last-known address of record. The employee failed to appear at the September 18, 2006, hearing.

The issue to be decided is whether the employee had good cause for failing to appear at the September 18, 2006, hearing.

The employee generally retrieves the mail received at his residence, where he resides with his wife. The employee's mail is placed in a locked mailbox. On occasion the employee has found mail in his mailbox intended for other residents of his building. The employee was not aware of any other mail sent to him that he did not receive. The employee testified that he would not have ignored the notice of hearing if he had received it. The commission credits the employee's testimony that he did not receive the notice of hearing. There is no evidence that his failure to receive the notice of hearing was due to any fault on the part of the employee.

The commission therefore finds that the employee had good cause for failing to attend the September 18, 2006, hearing within the meaning of Wis. Stat. § 108.09(4)(d).

DECISION

The appeal tribunal decision issued on October 12, 2006, is set aside. The appeal tribunal decision issued on September 19, 2006, is reversed. Accordingly, the employee's request for hearing on the merits is not dismissed. This matter is remanded to the hearing office for a hearing and decision on the merits of the appeal.

Dated and mailed December 8, 2006
jamesan . urr : 132 : PC 749  PC 712.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


NOTE: The commission has reviewed the evidence submitted to the ALJ as a matter of expediency despite the fact that the ALJ had lost jurisdiction. The commission could have remanded the matter for a hearing on the good cause issue where the employee presumably would have offered the same explanation for having failed to appear at the September 18, 2006, hearing.

cc:
Continental Inc. (Milwaukee, WI)
Casual Male Big & Tall (Madison, WI)


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uploaded 2006/12/15