STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION

In the matter of the unemployment benefit claim of

AURIA M. PELLICIER, Employee

Involving the account of

ONE HOUR MARTINIZING, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 94606141MW


An initial determination was issued on July 14, 1994, which found that the employe voluntarily terminated her employment because she had no reasonable alternatives due to the health of a family member but that she was not able to work and available for work in at least 15 percent of suitable jobs in her labor market. Accordingly, benefits were denied until the employe was able to work and available for work. That determination became final unless an appeal was filed by July 28, 1994. The employe filed an appeal on August 17, 1994. The employe did not file an appeal prior to that date because she did not receive the initial determination until on or about August 17, 1994.

The initial issue to be decided is whether the employe's failure to file a timely request for hearing was for a reason beyond her control within sec. 108.09 (2r) and (4), Stats.

The commission determines that the employe's failure to file a timely request for hearing was beyond her control. The employe could not control the fact that she did not receive the initial determination within the appeal period. The employe could not control the delay in delivery of the initial determination.

The second issue to be decided in this case is whether the employe voluntarily terminated her employment for any reason permitting immediate benefit payment.

The employe worked approximately 1 year as an ironer for the employer, a laundry. She voluntarily terminated her employment on May 31, 1994 (week 23).

The employe voluntarily terminated her employment in order to care for her brother and her mother. The employe's brother had been originally caring for their mother but the brother then required surgery which necessitated the employe's quitting her job in order to care for both her mother and brother. The employe has no other relatives who could care for her family. The employe is available for part time work between the hours of 5:00 p.m. and 10:00 p.m.

Section 108.04(7)(c), Stats., provides that the quit disqualification of sec. 108.04(7)(a), Stats., does not apply to an employe who voluntarily terminates employment due to the health of a family member, if the employe had no reasonable alternatives, and as long as the employe is able to work and available for work in her general labor market.

In this case, the commission determines the employe did voluntarily terminate her employment to care for a member of her immediate family and had no reasonable alternative to quitting. Further, no evidence was adduced at the hearing to establish the employe's need to care for her family, personal circumstances over which the employe has no control, limit her availability for work and ability to work in her labor market to less than 15 percent of the opportunities for suitable work in her labor market area. Accordingly, the commission finds the employe is able to work and available for work in her labor market.

The commission therefore finds that the employe failed to file a timely request for hearing, but that the failure to do so was due to an exceptional circumstance beyond her control within the meaning of sec. 108.09(4) and Chapter ILHR 140 Wis. Admin. Code.

The commission further finds the employe voluntarily terminated her employment pursuant to sec. 108.04 (7)(c), Stats. and is able to work and available for work in her labor market.

DECISION

The appeal tribunal decision dismissing the employe's request for hearing is reversed. The initial determination is reversed. Accordingly, the employe is eligible for benefits beginning in week 23 of 1994, if she is otherwise qualified.

Dated and mailed February 17, 1995
132 : CD8526  PC 711  AA 220  VL 1023.13 

Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner


MEMORANDUM OPINION

The commission did consult with the administrative law judge regarding witness credibility and demeanor. The administrative law judge found the employe to be a generally credible witness.

 


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