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


RENEE A RAY, Employe

COUNTY GLASS METAL INSTALLERS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 98607343MW


ORDER

Pursuant to authority granted in Wis. Stat. § 108.09(6)(b), the commission sets aside its February 10, 1999 Decision in this matter, and issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On October 22, 1998, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with her employment. The employe timely filed a request for hearing on the adverse initial determination, and hearing was scheduled for November 30, 1998. The employe failed to appear at the scheduled hearing, and the issue is whether she had good cause for that failure, within the meaning of Wis. Stat. § 108.09(4). The commission concludes that she did, and so reverses the appeal tribunal decision.

In addition to the employe's unemployment insurance claim, the employe had filed an equal rights complaint with the Department of Workforce Development Equal Rights Division. The employe's and the employer's attorneys reached a settlement of the employe's equal rights complaint the week before the scheduled November 30 hearing. Part of the settlement was that the employer would not contest the employe's claim for unemployment insurance. Pursuant to this part of the settlement, the employer's attorney wrote a letter to the Department of Workforce Development indicating that the employer had agreed not to contest payment of unemployment insurance to the employe; the letter also indicated that, unless instructed otherwise, the employer would not be appearing at the rescheduled hearing. Both the employe's and the employer's attorneys took the effect of this letter to be that the employe would now receive unemployment insurance. For this reason, the employe did not appear at the scheduled November 30 hearing.

If a party fails to appear at hearing, his or her case will be dismissed unless the party can show good cause for that failure. The courts have construed this standard to be equivalent to "excusable neglect," that is, the neglect a reasonable person would exercise in similar circumstances. The commission must conclude that the employe's failure to appear at the November 30 hearing, meets this standard. If the employe's and employer's attorneys did not know the actual effect of both parties' failure to appear at the November 30, 1998 hearing (that effect being the dismissal of the employe's appeal and the continued effect of the misconduct initial determination), then frankly speaking there is little chance the employe would know, either.

The commission therefore finds that the employe failed to appear at the scheduled November 30, 1998 hearing, but that that failure was with good cause, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The commission's February 10, 1999 decision is set aside. The November 30, 1998 appeal tribunal decision is reversed. The matter accordingly is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed March 10, 1999
reneera2.urr : 105 : 6  PC 712.6

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The dismissal was without hearing, so the commission's reversal obviously is not based upon a differing credibility assessment from that made by the administrative law judge. The commission has also determined to accept the employe's late petition as having been late for a reason beyond the employe's control. Her petition was late for the same reason she missed the scheduled November 30, 1998 hearing and, again, if her attorney and the employer's attorney did not know the effect of her failure to have appeared at the scheduled November 30, 1998 hearing, then the employe would not have known of that effect, either.

cc: BLUMENFIELD ROSE & DEJONG
ATTN VICTOR PLANGTINGA

ATTORNEY PAMELA R RESNICK
RESNICK & RESNICK SC


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