LE ANNE A LE MIEUX, Employee

HORSESHOE BAY GOLF CLUB, 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:

The department issued an initial determination that denied benefits. The employee filed a timely appeal and a hearing was scheduled for December 15, 2008, at which only the employee appeared. An appeal tribunal decision which reversed the initial determination and allowed benefits was issued and mailed on December 15, 2008. Within 21 days, the employer/respondent filed a request for a rehearing on the merits. The appeal tribunal decision was then set aside for further consideration of that request.

A hearing was held on January 14, 2009, on the issue of the employer's failure to appear at the earlier hearing. On January 15, 2009, an appeal tribunal decision was issued that found that the employer did not have good cause for failing to appear at the December 15, 2008, hearing. The employer filed a timely petition for commission review of the appeal tribunal decision. On February 17, 2009, the commission remanded this matter for the taking of additional testimony on the employer's failure to appear.

The employer's executive assistant and supervisor of office administration routinely sorts mail on a daily basis. If a document comes to the employer in care of human resources, that mail would go directly to the human resources mail box. If a document was mailed in an envelope indicating that it was from the State of Wisconsin, it would go directly to human resources for processing. The executive assistant is the only person who handles the mail. The office assistant was not on vacation or absent after December 6, 2008, the date the hearing notice was mailed, through December 24th. Two witnesses from the human resources department testified that the hearing notice was never received by them. As such, the most reasonable inference from the evidence is that the document was lost in the mail and was never delivered to the employer. If the employer never received the hearing notice it had good cause for failing to appear at the hearing.

The commission, therefore, finds that the employer failed to appear at the hearing scheduled for December 15, 2008, but that such failure was with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code Ch. DWD 140.

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 26, 2009
lemiele . urr : 145 : 6 PC 712

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing. The commission did not reverse the ALJ based on a different assessment of witness credibility but rather, the commission relied upon evidence presented at the remand hearing. This evidence was not available to the ALJ when she made her decision.

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uploaded 2009/04/03