ELSA V FLOR, Employee

PERSONNEL CONNECTION, Employer

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:

On, Monday, November 24, 2008, the employer appealed the initial determination. On Tuesday, November 25, 2008, the department mailed the notice of hearing to the employer at its correct address of record scheduling a hearing to take place at 2:00 p.m. on Monday, December 1, 2008. The employer's receptionist receives the mail at around 1:00 p.m. and distributes mail addressed to the employer without a specific name to the general manager. The general manager works only part-time so she wasn't at work on Wednesday November 26. She did not work on Thursday and Friday, November 25 and 26, due to the Thanksgiving Holiday. She had Wednesday and Friday's mail waiting for her when she arrived at work on Monday, December 1. The receptionist brought Saturday and Monday's mail into the general manager just after 1:00 p.m. on Monday. The employer is an employment agency and gets a lot of mail. The general manager opened the hearing notice at about 1:45 p.m. Although she could have gone to the hearing location about a half mile from her office, the general manager determined that it was unrealistic to try to assemble the employer's witnesses in time for the 2:00 p.m. in-person hearing. She then called the hearing office to report that the employer could not participate in the haring due to the late notice.

The issue to be decided is whether the employer had good cause for its failure to appear at a hearing scheduled for December 1, 2008.

The general manager's part-time schedule and the employer closing for the holiday did not cause the employer not to appear at the hearing. Saturday and Monday's mail arrived at 1:00 p.m. on the day of the hearing and the notice of hearing was included with that mail. The employer had only fifteen minutes notice of the hearing. While an appellant should make immediate plans for participating in a hearing, it was not practical for the employer to arrange for witnesses to appear with only fifteen minutes notice.

The commission therefore finds that the employer/appellant failed to appear at a hearing scheduled for December 1, 2008, and that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Admin. Code ch. DWD 140.

The decision of the administrative law judge is reversed. Accordingly, the employer is entitled to a hearing on the merits. The matter will be returned to the hearing office for such hearing.

Dated and mailed February 6, 2009
florels . urr : 132 : 1   PC 712.1

James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not consult with the ALJ regarding witness credibility. The commission's reversal is not based on credibility.

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]

uploaded 2009/02/09