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


MARY E MARTIN, Employe

LYON GOLD & SILVER MAGNETIC DESIGN, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99200201EC


The Department of Workforce Development (department) issued an initial determination on December 11, 1998, finding that the employe was discharged but not for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5). The employer timely appealed and a hearing was scheduled for January 26, 1999. The employer/appellant failed to appear at the scheduled hearing. The employer's hearing request was dismissed on January 27, 1999. Within 21 days, the employer/appellant filed a request for hearing on the merits and the initial appeal tribunal decision was set aside.

A hearing was held before an administrative law judge (ALJ) regarding the employer/appellant's nonappearance at the January 26, 1999 hearing. On February 19, 1999, the ALJ issued her appeal tribunal decision granting the employer/appellant's request for a hearing on the merits, finding that the employer/appellant's failure to appear was with good cause within the meaning of Wis. Stat. § 108.09(4)(d) and Wis. Adm. Code DWD 140. The employe timely petitioned the commission for review of the appeal tribunal decision.

Based on the applicable law, records and evidence in this case, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employe worked approximately three and one-half months doing clerical work for the employer, an employment service business. The employe's last day of work was on or about November 19, 1998. (week 47). Thereafter the employe filed a claim for unemployment benefits. The department issued an initial determination on December 11, 1998 permitting the payment of benefits to the employe. The employer filed a timely appeal and a hearing was scheduled for January 26, 1999. The employer/appellant failed to appear at the scheduled hearing.

The issue for review is whether the employer had good cause for the failing to appear at the January 26, 1999 hearing. Wis. Stat. § 108.09(4)(d) provides that if after hearing testimony, the appeal tribunal finding that the appellant's explanation establishes good cause for nonappearance, the appeal tribunal shall issue a decision containing this finding and a further hearing on the merits will be scheduled.

At the hearing, the employer contended that it had good cause for failing to participate at the January 26, 1999 hearing. The witness identified herself as the trustee in charge of operations. On January 26, the day of the hearing, the trustee received a call from a worker who handles the employer's mail. This individual informed the trustee that she should be at a UI hearing that day but the trustee was out of town on business. The trustee also testified that according to the mail handler, the notice of hearing came in the mail that day. The trustee then called the hearing office and sent a letter requesting another hearing.

As the ALJ explained, "good cause" for a party's nonappearance at a hearing is something more than negligence, carelessness, or inattentiveness. It is substantially equivalent to "excusable neglect." Good cause may be found in cases of excusable neglect which may have been the act of a reasonably prudent person under similar circumstances. Based on this standard, the ALJ found that the employer was unable to attend the hearing because it had not received the hearing notice in sufficient time as to be able to attend the hearing.

The commission reverses the appeal tribunal decision as a matter of law. The trustee was unable to offer any firsthand evidence regarding receipt of the hearing notice as she was out of town when the employer received it. According to the trustee, the only person that had any personal knowledge of the receipt of the hearing notice was the employer's mail handler. Wis. Adm. Code § 140.16(1) provides that while hearsay evidence is admissible if it has reasonable probative value, no issue may be decided solely on hearsay evidence unless the hearsay evidence is admissible under Chapter 908, Stats.

The commission concludes that the ALJ based her decision that the employer did not receive the hearing notice in sufficient time on hearsay evidence and consequently reverses the appeal tribunal decision. The trustee was out of the office and town on the day she received the phone call from the mail handler and could not offer any firsthand evidence as to when the hearing notice was actually received by the employer. Nor did the trustee offer any firsthand evidence regarding the envelope containing the hearing notice. The envelope would have at least indicated the postmark, which is presumed to be the day on which the notice is mailed. Finally, the commission notes that the trustee's testimony at hearing directly contradicted her letter received by the department on January 29, 1999. In that letter, the trustee indicated that she did not open the hearing notice until January 27, 1999.

The commission therefore finds that the employer/appellant failed to appear at a hearing held on January 26, 1999, and that such failure was not with good cause within the meaning of Wis. Stat. § 108.09(4).

DECISION

The appeal tribunal decision is reversed. The employer/appellant's request for hearing on the merits is dismissed. The initial determination remains in effect.

Dated and mailed April 28, 1999
martima.urr : 135 : 1 PC 712.1  PC 712.9  PC 714.07

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

The commission did not confer with the ALJ as credibility was not at issue. This reversal is based solely on the fact that the employer offered only hearsay evidence regarding the receipt of the department's notice of hearing. The mail handler should have been present at this hearing to testify when she actually received the notice of hearing. Without such firsthand evidence, the commission must conclude that the employer failed to properly monitor its mail and as such is not entitled to a hearing on the merits.


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