Wisconsin Labor and Industry Review Commission --
Summary of Wisconsin Court Decision relating to Unemployment Insurance


Subject:  Donald W. Littlewood v. LIRC and Mainstream Records, Inc., Waukesha County Case No. 84-CV-1751 (Preliminary Decision January 23, 1985, Final Decision March 21, 1985)

Digest Codes: PC 712.2    - Hearing, Failure To Appear - mis-marked calendar - mismarked calendar

An initial determination held that it was not established the employee was discharged for misconduct, and allowed benefits.  The employer appealed.  Notice of hearing was mailed on February 7, 1984,  scheduling the matter for hearing on February 15, 1984.   The employee read the notice and saw that the hearing was scheduled for the 15th,  and he wrote a note concerning the hearing on his calendar on the 15th,  but he had actually put the hearing down on March 15, 1984, because he had inadvertently torn the February page off his calendar when he tore off the January page at the end of that month.  The 15th of March fell on a Thursday rather than a Wednesday as did the 15th of February.   The employee did not appear at the hearing, and only the employer's testimony was taken. On the evening of February 15 the employee contacted a former supervisor concerning a question he had and learned the hearing had been held that day.  The next morning he went to the hearing office and explained his error in writing.  

The examiner scheduled the case for further hearing, to take testimony on the failure to appear issue, and provisionally on the misconduct issue.  After taking testimony on both issues, the examiner issued two decisions.   One decision, concerning the failure to appear  issue, held that the employee’s failure to appear was without good cause, and that therefore his additional testimony on the misconduct issue would not be considered.   The other decision addressed the misconduct issue and, based solely on the evidence which had been provided by the employer at the original hearing, held that the employee had been discharged for misconduct connected with his employment. The employee petitioned for Commission review of these two decisions, and the Commission affirmed both, also in two decisions.

The employee commenced an action for judicial review of the decision that he did not have "good cause" for his failure to appear.  He did not commence an action for judicial review of the other decision (based solely on the employer's evidence) finding misconduct.

Held:  Reversed.  In a preliminary decision, the court held that the question of whether the plaintiff had "good cause" for failing to appear at the hearing was a question of law to be decided independently by the court, and further briefing was ordered on the question of "good cause".  Thereafter, in a final decision, the court reasserted its view that the commission's determination of whether there was "good cause" would not be given weight  and that the court must make an independent decision on this legal issue.  The court concluded that the relevant questions in determining whether the employee had "good cause" for failing to appear for the hearing are (1) whether the employee's failure to appear at the hearing was the result of "excusable neglect";  (2) if so, whether he acted to rectify his nonappearance within a reasonable time;  and (3) the prejudice that might result to the opposing side if the plaintiff were permitted to testify on the merits.  Noting that  in Dugenske v. Dugenske, 80 Wis.2d 64 (1977) the Wisconsin Supreme Court held that "excusable neglect" is "that neglect which might have been the act of a reasonably prudent person under the same circumstances", the court opines that this "is, of course, internally inconsistent".  The court concluded that the intended meaning of the Supreme Court in Dugenske must be, that excusable neglect is limited to neglect or negligence which could be committed by "a reasonably imprudent person" -- in other words, neglect or negligence which is not so egregious or exacerbated as to be inexcusable. Here, while the employee was certainly negligent in inadvertently tearing off an extra page of his calendar at the end of January, his negligence was not so aggravated or unusual as to be inexcusable.  It was the kind of negligence which a reasonably imprudent person might commit under the Dugenske standard.  The employee also proceeded within a reasonable time to take steps to correct his default.  Finally, scheduling another hearing on the merits and allowing the employee to testify will result in no prejudice to the employer other than the minimal inconvenience of having to appear at an extra hearing.  This minimal prejudice is greatly outweighed by the terminal prejudice resulting to the employee from being deprived of all opportunity to be heard on the merits.  The court therefore reversed the decision of the commission and concluded that the employee had "good cause" for his failure to appear at the hearing.

The court also rejects the commission's argument that because the employee did not seek judicial review of the second decision which addressed the merits of the misconduct question it had to be affirmed.  This argument exalts form over substance.  The employee was not arguing that the employer's evidence at the original hearing did not support the misconduct conclusion;  he appealed the "good cause" decision in order to reverse the "good cause" finding and to secure the right to a hearing on the merits of the misconduct issue.  While it could be argued that it might have been preferable for the employee to have appealed the decision on the merits as well, at worst this was a technical miscalculation on his part which must be disregarded in the interests of justice. Both decisions are therefore reversed and the matter is remanded for a further hearing on the merits of the misconduct issue.


Please note that this is a summary prepared by staff of the commission, not a verbatim reproduction of the court decision.

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uploaded 2003/06/16