ASHLI E HAYFORD, Employee
MILIOS SANDWICHES, Employer
The employee timely appealed and a hearing was scheduled for 12:15 p.m. on November 14, 2006. The employer/respondent did not appear for the hearing but the employee/appellant did appear. After the hearing was concluded, a decision was issued by mail that same day; it modified and reversed the determination, allowing unemployment insurance benefits to the employee.
At approximately 3:33 p.m. on November 14, 2006 departmental records reflect that the employer's area supervisor contacted the hearing office, explaining that he did not appear for the hearing because he had written the "wrong date down" for the hearing. In response, he was informed that he could wait until he received the decision in the matter and, then, if he wanted to appeal, he should do so by the appeal deadline, December 5, 2006.
On November 30, 2006, the employer mailed a letter explaining its failure to appear, requesting a new hearing on the merits and arguing that the employee should not be eligible for unemployment insurance benefits. The letter was dated November 28, 2006 by the employer and was received on December 1, 2006 at the Madison Hearing Office.
On December 11, 2006, the administrative law judge sent a letter to the employer (1) indicating that the reason for its failure to appear "is insufficient under the statutes to constitute good cause for failing to appear and I will not direct a hearing to be scheduled." He then explained, "The statutes permit you to request a review of this matter. To do so, follow the appeal instructions on the Appeal Tribunal Decision of November 14, 2006." (2)
Departmental records next reflect that on December 13, 2006, the employer telephoned the Madison Hearing Office inquiring as to what the employer's "next step" in appeal was. The employer was informed that the December 1, 2006 letter would be forwarded to the commission as a petition for commission review. On December 15, 2006, a confirmation of petition for commission review was sent based upon the letter from the employer received by the hearing office on December 1, 2006.
Wis. Stat. § 108.09(4)(e)3 provides in relevant part and with emphasis added:
. . . If the respondent delivers or transmits a written explanation for nonappearance to the department which is received within 21 days after a decision unfavorable to the respondent is mailed under subd. 1., the appeal tribunal may set aside the original decision and the department may schedule a hearing concerning whether there was good cause for the respondent's nonappearance. The department may also provisionally schedule a hearing concerning any matter in the determination. If the original decision is not set aside, the appeal tribunal may on its own motion amend or set aside that decision within 21 days after the decision concerning whether there was good cause for the respondent's nonappearance is mailed under subd. 1. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation does not establish good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and, if necessary, reinstating the decision which was set aside. If, after hearing testimony, the appeal tribunal finds that the respondent's explanation establishes good cause for nonappearance, the same or another appeal tribunal established by the department for this purpose shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3)(b) after conducting a hearing concerning any matter in the determination. If such a 2nd hearing is held concerning any matter in the determination, the appeal tribunal shall only consider the testimony and other evidence admitted at that hearing in making a decision.
The November 14, 2006 appeal tribunal decision was adverse to the employer. The employer's correspondence was not originally processed as a petition for commission review of the decision. Instead, the administrative law judge considered it a written explanation of the employer's failure to appear. However, instead of setting the decision aside or issuing an amendment to his November 14, 2006 decision explicitly addressing the failure to appear issue, he simply wrote a letter to the employer indicating that the explanation provided, namely the supervisor's "error in reading the notice of hearing and accurately recording it," was insufficient to constitute good cause. (3) By simply denying the employer's request for a new hearing by letter, without the protections afforded with a decision, the administrative law judge deprived the employer of a right to petition the ALJ's actions with respect to its explanation of its failure to appear. While one may argue that the permissive "may" language in Wis. Stat. § 108.09(4)(e)3 does not explicitly prohibit the ALJ's actions, the effect of such actions nullifies the intent of the failure to appear provisions found at Wis. Stat. § 108.09(4)(d) and(e). Instead, the commission finds that the Wis. Stat. § 108.09(4)(e)3 sentence,
If the original decision is not set aside, the appeal tribunal may on its own motion amend or set aside that decision within 21 days after the decision concerning whether there was good cause for the respondent's nonappearance is mailed under subd. 1.
directs that an appeal tribunal either amend or set aside the original decision to deal with the good cause issue.
In addition, given the circumstances of this case, it is unclear whether, had the employer not contacted the hearing office on December 13, 2006, the employer's letter would have been treated as a timely petition for commission review. At the very least, the situation delayed the processing of the petition for two weeks.
Once the hearing office forwarded the employer's letter as a petition for commission review, the commission obtained jurisdiction of the matter. Wis. Stat. § 108.09(6)(d), provides:
In any case before the commission for action under this subsection, the commission may affirm, reverse, modify or set aside the decision on the basis of the evidence previously submitted, may order the taking of additional evidence as to such matters as it may direct, or it may remand the matter to the department for further proceedings.
Dated and mailed February 5, 2007
hayfoas . upr : 150 : 6 PC 712.9
/s/ James T. Flynn, Chairman
/s/ David B. Falstad, Commissioner
/s/ Robert Glaser, Commissioner
[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]