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

BARSEANA N ABDULLAH, Employee

MILWAUKEE PUBLIC SCHOOL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07602815MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On February 10, 2007, the department mailed a hearing notice to the employee, at her address of record, informing her that her unemployment insurance hearing in this matter would be held on March 1, 2007, at 9:30 a.m. The employee received the hearing notice prior to the hearing, but did not attend the hearing as scheduled.

The issue to be decided is whether employee had good cause for her failure to appear at a hearing scheduled for March 1, 2007.

The employee upon receiving the hearing notice, noted the date of the hearing in her calendar. However, the employee inadvertently noted the wrong day for the hearing and as a result, failed to appear at the hearing. The hearing in this case was to be held on Thursday, March 1, 2007. The employee noted on her calendar that the hearing was going to be on Thursday, March 8, 2007

The commission has generally held that this kind of inadvertent error constitutes good cause for failing to appear at a hearing. See 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).

The commission therefore finds that the employee's failure to have appeared at the scheduled March 1, 2007 hearing in his case was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded for a hearing and decision on the merits.

Dated and mailed June 29, 2007
abdulba . urr : 145 : 1    PC 712.2

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


MEMORANDUM OPINION

The commission discussed witness credibility and demeanor with the ALJ who held the hearing. The ALJ did not find the employee to be credible because the employee did not have the calendar she mismarked at the hearing. In addition, the employee did not furnish any specific detail with respect to what day she marked on her calendar. The commission found the employee to be credible because her testimony was not disputed. In addition, the employee consistently stated that she mismarked her calendar. Further, it was in the employee's interest to attend the hearing, as the initial determination denied benefits.


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