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


ELIZABETH M SMITH, Employe

KENOSHA YOUTH FOUNDATION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00601459RC


On February 12, 2000, the Department of Workforce Development issued an initial determination which held that the employe had been discharged for misconduct connected with her employment. The employe filed a timely request for hearing on the adverse determination, and hearing was scheduled for March 6, 2000 in Racine, Wisconsin. Only the employe appeared at the hearing. Shortly thereafter, the employer submitted documentation alleging good cause for its failure to have appeared at the scheduled hearing. Hearing was held on March 27, 2000 on the issue of the employer's failure to have appeared at the March 6 hearing. On March 29, 2000, a department administrative law judge issued an appeal tribunal decision finding that the employer had good cause for its failure to have appeared at the hearing. The employe filed a timely petition for commission review of that decision, and the matter now is ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The issue in this case is whether the employer had good cause for its failure to have appeared at the scheduled hearing on the merits March 6, 2000. The commission concludes that it did not, and so reverses the appeal tribunal decision.

The employer's Buildings and Grounds Director is the individual who failed to appear at the March 6 hearing. He is not familiar with the City of Racine. Upon getting to Racine (from Kenosha), he got turned around just past the J. I. Case factory and ended up by the YMCA downtown. At that point, he received bad directions regarding getting back over to Washington Avenue (the street of the hearing location), and eventually found the hearing office. By the time he did so, the hearing had already been concluded.

The courts have held that the good cause standard for missing a hearing is akin to "excusable neglect," the neglect a reasonably prudent person might be expected to commit in given circumstances. The administrative law judge, in finding that the employer had good cause for his failure to appear, reasoned that the bad directions the employer received substantially contributed to the employer's late arrival and were a factor not within the employer's control. Based upon the employer's testimony, however, the commission must conclude that the employer's failure to appear at the hearing was due to the employer's unfamiliarity with the City of Racine (and the hearing location therein). The commission has long held, though, that parties are obliged to familiarize themselves with the hearing location in advance of the hearing, so as to be able to arrive at the hearing in a timely manner. The commission has dismissed a case when the appellant's failure to appear was due to unfamiliarity with the area of the hearing location. Walsh v. Gateway Associated Service, Inc. (LIRC June 18, 1992). The commission also has dismissed a hearing request when the appellant's failure to have appeared, was due to a combination of wrongly assuming the hearing was at the same site of a previous hearing and receiving incorrect directions, in Zimmerman v. Graphic Management Specialty Products, Inc., UI Dec. Hearing No. 00400039AP (LIRC Mar. 14, 2000). In the present case, it is clear from the employer's testimony that the primary reason for the employer's failure to have appeared at the hearing was the employer's unfamiliarity with the area of the hearing location. As indicated above, though, it is a party's responsibility to familiarize itself with the hearing location site, so as to be able to appear at the hearing on time. Since the employer could have done so, the commission cannot conclude that his failure to have appeared at the hearing was with good cause, within the meaning of Wis. Stat. § 108.09(4). The commission therefore finds that the employer failed to appear at the scheduled March 6, 2000 hearing, and that that failure was not with good cause, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, no further hearing on the merits will be held. This matter is remanded to Administrative Law Judge Gordon (who conducted the March 6 hearing on the merits) for the issuance of a decision  on the merits. The record for purposes of that decision will be only the record established at the March 6 hearing.

Dated and mailed April 28, 2000
smithel.urr : 105 : 6  PC 712.3

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

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 commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the employer's own testimony makes it clear that his unfamiliarity with the area of the hearing location was the primary cause of his failure to appear on time at the hearing. As a matter of law, unfamiliarity with the hearing location is not good cause for a failure to appear.


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