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

MARTY L JONES, Employee

CORNWELL PERSONNEL ASSOCIATES LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07603330MW


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

The department issued an initial determination on March 16, 2007, that found that the employee quit his employment with the employer but not for a reason which would allow the immediate payment of benefits. The initial determination denied benefits until the employee earned wages after the week of quitting equaling at least $456 and he was also required to wait until at least March 31, 2007, even if he earned $456 or more prior to that date. The employee filed a timely request for hearing and a hearing was scheduled for April 23, 2007. The employee did not appear for the hearing and as a result, the hearing was dismissed. The employee sent a letter postmarked May 10, and received by the hearing office on May 11, 2007, indicating that he did not attend the hearing on April 23, 2007 as he was not aware of it because he attended a hearing on April 6, 2007, and he thought this was for the same issue.

The department earlier issued a different initial determination involving a different week. That initial determination was mailed on March 2, 2007, and found that in week 5 the employee quit but not for a reason which would allow immediate benefit payment. The employee quit because he wanted the employer to find a new work assignment for him because the company he was at did not hire him on. The employee filed an appeal by letter on March 15. The employee attended a hearing on this matter on April 6, 2007, at 10:30 a.m. and on April 10, 2007, the department issued an appeal tribunal decision reversing the initial determination and finding that in week 5 of 2007, the employee was discharged but not for misconduct. The employee was or should have been aware that this involved a different issue because he received two different initial determinations on two different days that referenced two different weeks. The employee filed two separate appeals to those initial determinations. Further, the employee's appeal tribunal decision in the earlier case was mailed on April 10, 2007, while his hearing notice in the present case was mailed on April 12, 2007. Therefore, he would have received that hearing notice after receiving a favorable decision in his other case. The employee may well have been confused by receiving the hearing notice but given the circumstances in this case, it was not reasonable of the employee to ignore it. At the very least, the employee should have contacted the Hearing Office for an explanation rather than simply ignoring a hearing notice that informed him that a hearing had been scheduled and that also informed him that his appeal could be dismissed if he failed to appear. The commission and the courts have held that good cause is something more than negligence, carelessness, or inattentiveness. Good cause may be found where there has been excusable neglect or neglect which may have been the act of a reasonably prudent person under similar circumstances. Applying these standards, the commission concludes that good cause has not been shown in this case.

The commission therefore finds that the employee failed to appear at a hearing scheduled for April 23, 2007, and that he did not have good cause for his failure to appear, within the meaning of Wis. Stat. § 108.04(9)(d) and chapter DWD 140 of the Wisconsin Administrative Code.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is dismissed.

Dated and mailed July 31, 2007
jonesma . urr : 145 : 1  PC 712.6

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. She indicated that the employee was a credible witness and she believed he truly misunderstood the hearing notice. The ALJ thought that the employee truly believed that everything had been taken care of. The ALJ noted that the good cause hearing was scheduled as a phone hearing and that the employee did not understand the hearing notice and appeared for this hearing in person. The ALJ also noted that prior to the hearing she called the employee and the person who answered the phone indicated that she and the employee read the hearing notice for the good cause hearing over and over but did not understand it. However, this was not testimony given under oath and the commission did not consider that when making its decision. The commission's position is that the employee received a hearing notice from the hearing office after he received a favorable decision in his other case. Therefore, even if he did not understand the hearing notice, at the very least he should have contacted the hearing office for an explanation. Further, the commission is not convinced that the employee did not realize that he had another hearing given the timing of the events in this case.


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