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

TIMOTHY L PERKINS, Employee

ATLAS BOARD UP SERVICES, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08005249MD


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 employer timely appealed the department's determination. By notice mailed November 19, 2008, a telephone hearing was scheduled for 12:45 p.m. on December 2, 2008. The employer-appellant appeared for the hearing; however, the employee respondent did not. An appeal tribunal decision was issued and mailed on December 2, which amended and reversed the initial determination. Within 21 days, the employee-respondent filed a request for rehearing on the merits. The appeal tribunal decision was then set aside for further consideration of that request. In a decision dated November 9, 2009, an appeal tribunal denied the employer's request for a rehearing.

The issue to be decided is whether the employee-respondent had good cause for his failure to appear at a hearing scheduled for December 2, 2008.

On October 22, 2008, a hearing notice was mailed to the parties advising that a telephone hearing was scheduled for November 5, 2008. On October 29, an appeal tribunal decision was issued withdrawing the employer-appellant's appeal based upon erroneous information. On November 3, a second appeal tribunal decision was issued which stated that the employer-appellant had retracted its withdrawal and "a hearing on the merits of the case [would] be scheduled promptly."

On or about November 15, 2008, the employee moved to a new residence; however, he failed to inform the department of his new mailing address until November 24. As a result, the hearing notice was mailed on November 19, 2008, to his former address which was the address of record with the department. At approximately 2:00 p.m. on December 2, 2008, the employee received the hearing notice which had been forwarded by the post office to his new address. He contacted the hearing office to advise that he had missed the hearing. A hearing office representative told the employee that he may submit a good cause letter requesting a re-hearing on the merits. On or about December 8, the employee faxed his good cause letter to the hearing office.

The employee-respondent argues that his failure to appear was with good cause. The commission agrees.

In Rice v. Wisconsin Lutheran Child & Family Service Inc. UI Dec. No. 02607, (LIRC, February 6, 2003), the commission held that it was reasonable for an employee to rely upon the post office to forward her mail to her, and she could have expected to receive her mail in time to participate in the hearing. The commission in Rice determined that the employee's failure to appear at the hearing was with good cause. Likewise, the employee in this case had the right to rely on the post office to forward his mail to him.

The commission therefore finds that the employee's failure to appear at the hearing scheduled for December 2, 2008, was with good cause, within the meaning of Wis. Stat. § 108.09(4)(e) 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 of the case.

Dated and mailed March 20, 2009
perkiti . urr : 145 : 6 PC 712

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


 

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


uploaded 2009/04/03