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

Subject: Marc Nelson v. Marc Plaza Corp. & DILHR, Case No. 148-416 (Wis. Cir. Ct., Dane Co., May 27, 1976)

Digest Codes: PC  712.1  PC 712.9  PC 755 

The employe worked as a bartender for the employer for about five months and the employer appealed an allowance of benefits.  At the hearing the employer appeared but the employe did not appear and a decision by an appeal tribunal held that the employe was discharged for misconduct connected with his employment and was ineligible for benefits.

Upon receiving a copy of this decision the employe immediately filed a request for a review asserting that he did not receive the notice of the hearing and did not know about the hearing until he got the decision.

The Commission issued a decision affirming the appeal tribunal and did not make any mention of the employe's request for another hearing.

Held: The employe contends that due process entitles him to another hearing on the substantive issues or at least a hearing to determine as a question of fact whether there was a receipt by him of the notice letter telling him about a hearing.

It is undoubtedly true that proof of mailing a letter creates a presumption that the letter was received and that such proof need not be direct but may be shown by evidence of office customs and compliance therewith. Where, as here, the office involved is that of an administrative agency to whose acts is attached the usual presumption of regularity the Commission or the appeal tribunal may properly arrive at the presumption of receipt of a mail letter solely from taking administrative notice of departmental office procedures. It appears, however, that the department relies on the language of applicable procedural  statutes to conclude that the presumption of receipt is conclusive or that the mailing of notice is an end in itself and obviates any legal need for actual receipt. As a result of this interpretation the employe was informed that his failure to receive notice of the hearing did not excuse his absence. This view clearly does not conform with constitutional due process notice requirements.

The court believes that the employe, having made prompt complaint about lack of notice of the hearing, is constitutionally entitled to another hearing to determine the issue of whether notice of the original hearing was received by him in the mail. The evidentiary standards to be applied to that determination are set out in 31A. C.J.S. Evidence at paragraph 136.

The Commission's decision will be set aside and the case remanded with directions that a hearing be held on the issue of whether notice of the hearing was received in the mail by the employe and a determination be made on that issue in conformity with the standards set forth. If it is found that it was not, a new hearing shall be held on the substantive issue of misconduct and both issues may be heard together.

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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