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

MARIA D GONZALEZ, Employee

TRAVEL GUARD GROUP INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07401954AP


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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The employee's petition is accepted for commission review. The decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed November 13, 2007
gonzama . usd : 115 : 1    PC 731  PC 712.6

/s/ James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


Late petition

The employee's appeal of an adverse determination was originally scheduled for hearing on September 4.

However, by letter dated August 23, the department advised the employee that this hearing had been postponed "and will be rescheduled," and the employee should "inform the hearing office of any dates you are not available through the end of September."

According to the file, the employee never provided any such dates.

Notice that the rescheduled hearing would be conducted on September 12 was mailed to the employee at her address of record on August 29.

The file indicates that, on September 12, the employee phoned the department at 9:05 a.m. and asked whether the hearing had been rescheduled; and, when she was told it was scheduled to be held that day at 1 p.m. by phone, indicated she would be driving a bus at 1 p.m. and unable to speak on the phone at that time. The file also indicates that the employee was advised that she had 21 days to submit a letter explaining her failure to appear.

An appeal tribunal decision (ATD) dismissing the employee's appeal as the result of her failure to appear at the September 12 hearing was issued on September 14.

In a letter faxed to the department on September 28, the employee's supervisor explained the employee's driving schedule, and the employee indicated the times she was available on her Monday through Thursday work days.

The file indicates that the employee phoned the department on October 8 to inquire as to the status of her case and was told that, although the department had received her September 28 letter, it was not clear what the intent of the letter was, i.e., it was not clear that she had intended it as a letter of explanation for her nonappearance.

On October 9, the employee faxed a letter to the department stating that she had not appeared at the September 12 hearing because she was scheduled to work driving a bus at the time and unable to speak on the phone as a result.

This October 9 letter has been processed as a petition for commission review. The deadline for appealing the ATD was October 5.

However, the September 28 letter should have been interpreted as the employee's nonappearance explanation/appeal of ATD. Even though she does not state those words in this letter, it is an obvious clarification of the fact that, because she was scheduled to drive a bus between the hours of 10:30 a.m. and 1:25 p.m. Monday through Thursday, she had been unavailable for the phone hearing at 1:00 p.m. on Wednesday, September 12.

As a result, the employee's September 28 letter is accepted as a timely petition for commission review of the September 14 ATD.  
 

Good cause for nonappearance

The next issue then is whether the explanation offered by the employee, if proved, would constitute good cause for her failure to appear at the September 12 hearing.

The employee clarified in her October 9 letter that she had not participated in the September 12 phone hearing because she was working, and unable to speak on the phone as a result, at the scheduled time.

However, the employee was instructed in the August 9 department determination, the August 17 confirmation of timely appeal notice, and the letter mailed to her on August 23 to immediately contact the hearing office to provide dates/times she would be unavailable to participate in a hearing, but she failed to do so. She was also advised in the two hearing notices she was mailed that parties were expected to arrange for time off work to participate in a hearing, and postponements were not granted for the convenience of the parties.

Despite this notice, the employee failed to advise the department prior to September 12 that she would be unavailable to participate in a phone hearing at 1:00 p.m. that day, or to arrange her work schedule in order to participate in the scheduled hearing. The information provided by the employee indicates that she worked a set schedule each week, and it is reasonable to infer from this that the fact that she was driving at 1:00 pm on Wednesday, September 12, was not unanticipated.

The standard for failing to appear at a hearing is "good cause." That 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 Hearing No. 98606107MW (LIRC Dec. 23, 1998).

Failing to attend a scheduled hearing to avoid missing work does not meet the good cause standard. See, Garry v. Federal Express Corp. and LIRC, Case No. 98-CV-004405 (Wis. Cir. Ct. Milw. Co., Feb. 10, 1999); Franz v. Milwaukee Messenger, UI Hearing No. 04000390MD (LIRC May 14, 2004). This result is even more compelling here where the employee had been reminded several times of her responsibility to provide notice to the hearing office of dates/times she would be unavailable, but failed to do so or to even contact the hearing office until the day of hearing; and had been advised more than once that she needed to arrange her work schedule in order to participate in the hearing, but failed to do so. See, Gerasch v. Northern Petro Services, Inc., UI Hearing No. 03001637WK (LIRC May 21, 2003).

The explanation offered by the employee for her nonappearance does not meet the good cause standard.



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uploaded 2007/11/28