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

GINA M KEMPF, Employee

TANDEM STAFFING FOR INDUSTRY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 01404006AP


ORDER

Pursuant to authority granted in Wis. Stat. § 108.09(6)(d), the commission sets aside the December 20, 2001 appeal tribunal dismissal decision in this case. The commission remands the matter to the Department of Workforce Development for hearing before and decision by a department administrative law judge, on the issue of the timeliness of the employee's request for hearing. The basis for the December 20, 2001 decision appears to have been principal/agent relationship between the employee and the employee's roommate, who allegedly inadvertently threw out the August 28, 2001 initial determination in the case. The evidence does not establish, though, that the employee's roommate was acting as the employee's agent. It is also questionable whether, under Wisconsin law, an agency relationship could be established in these circumstances. The necessary elements to establish a principal/agent relationship are: 1. express or implied manifestation of one party that the other party shall act for him; 2. retention by the alleged principal of control of details of the work the agent performs; 3. the engagement of the party agreeing to perform the services in question in a distinct occupation or business from that of the person who engages the services. Kohl v. F.J.A. Christiansen Roofing Co., 95 Wis. 2d 27, 289 N.W.2d 329 (Ct. App. 1980). There can be no agency relation unless the purported principal has some control or right of control over the actions of his purported agent. Kirchen v. Orth, 390 F. Supp. 313 (E.D. Wis. 1975).

Dated and mailed February 11, 2002
kempfgi : 105 : 8    PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner



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uploaded 2002/02/18