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

JEAN C CORRAO, Employee

PROCTER AND GAMBLE DISTRIBUTING COMPANY, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02600529MD


On January 12, 2001, the Department of Workforce Development issued an initial determination which held, inter alia, that the employer failed to file a timely required report, Form UCB-16. The employer filed a timely request for hearing on the adverse determination and hearing was held on March 7, 2002, in Madison, Wisconsin before a department administrative law judge. On March 15, 2002, the administrative law judge issued an appeal tribunal decision affirming the initial determination. The employer filed a timely petition for commission review of the adverse appeal tribunal 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

Department of Workforce Development records indicate that the employee filed a claim for unemployment insurance on December 10, 2001 and reported a termination of employment as of November 30, 2001. As a result, on December 11, 2001 the department mailed to the employer's address of record a Form UCB-16 Separation Notice. The form requests information on various topics, including vacation, dismissal, or holiday pay paid or to be paid to the employee after her last day of work. The form had a due date of December 18, 2001. The department did not timely receive the form from the employer, resulting in benefits being improperly paid to the employee. The issue in the case is whether the improperly paid benefits were the result of the employer's failure to timely question the employee's benefit eligibility, within the meaning of Wis. Stat. § 108.04(13)(c). The commission concludes that the employer did not fail to timely question the employee's benefit eligibility, and so reverses the appeal tribunal decision.

The employer's representative for unemployment insurance matters received the form UCB-16 in question on December 13, 2002. She contacted the employer to obtain the information requested by the form, and completed and signed the form on December 14. Also on December 14, the representative sent the completed form by facsimile transmission to the department's fax number. The representative's fax machine generated a receipt indicating a 1-page transmission to the department's fax number.

Wisconsin statute § 108.04(13)(c) provides as follows:

If an employer, after notice of a benefit claim, fails to file an objection to the claim under s. 108.09(1), any benefits allowable under any resulting benefit computation shall, unless the department applies a provision of this chapter to disqualify the claimant, be promptly paid. Except as otherwise provided in this paragraph, any eligibility question in objection to the claim raised by the employer after benefit payments to the claimant are commenced does not affect benefits paid prior to the end of the week in which a determination is issued as to the eligibility question unless the benefits are erroneously paid without fault on the part of the employer. If benefits are erroneously paid because the employer and the employee are at fault, the department shall charge the employer for the benefits and proceed to create an overpayment under s. 108.22(8)(a). If the benefits are erroneously paid without fault on the part of the employer, regardless of whether the employee is at fault, the department shall charge the benefits as provided in par. (d), unless par. (e) applies, and proceed to create an overpayment under s. 108.22(8)(a). If benefits are erroneously paid because an employer is at fault and the department recovers the benefits erroneously paid under s. 108.22(8)(a), the recovery does not affect benefit charges made under this paragraph.

Wisconsin statute § 108.04(13)(f) provides as follows:

If benefits are erroneously paid because the employer fails to file a report required by this chapter, fails to provide correct and complete information on the report, fails to object to the benefit claim under s. 108.09(1) or aids and abets the claimant in an act of concealment as provided in sub. (11), the employer is at fault. If benefits are erroneously paid because the employee commits an act of concealment as provided in sub. (11) or fails to provide correct and complete information to the department, the employee is at fault.

The employer contends that it should not be charged for benefits paid to the employee before January 12, 2002, because it submitted an accurate and timely UCB-16 Separation Report to the department. The commission agrees. Department fax records indicate that the department did not receive the transmission from the employer's representative. Department procedures contemplate occasions such as this, however, that is, where an employer has sent a report by facsimile transmission but which was not received by the department. The department considers an employer not to be at fault, even if the department does not receive the report, if the employer provides the department "with a fax copy or postal receipt dated by the fax machine or the post office on/before the due date of the report." Wisconsin Unemployment Compensation Manual, Volume 3, Part VII, ch. 14, p. 15. In such cases, the presumption is that the report "was lost in transit" and, in that circumstance, the employer is not guilty of failing to file a required report, within the meaning of Wis. Stat. § 108.04(13)(c).

The employer's evidence is firsthand testimony by the representative who sent the facsimile transmission, accompanied by documentary evidence in the form of a receipt from the representative's fax machine of a transmission sent to the department's fax number. If the department did not receive the facsimile transmission, then such non-receipt must be held to have been due to loss in transit, and not to the failure by the employer's representative to file the report.

The commission therefore finds that the employer did not fail to question the employee's benefit eligibility on a report required by the department, within the meaning of Wis. Stat. § 108.04(13).

DECISION

The appeal tribunal decision is reversed. Accordingly, benefits paid to the employee through January 12, 2000 are not to be charged to the employer's UI reserve account on the ground of its failure to have timely filed a required report concerning the employee's unemployment insurance eligibility.

Dated and mailed May 21, 2002
corraje . urr : 105 : 8   BR 319.1

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. The commission's reversal is not based upon a differing credibility assessment from that made by the administrative law judge. Rather, the administrative law judge failed to consider the possibility of loss of transmission in transit contemplated by the provision of the department's procedures manual cited above. As such, the commission's reversal is as a matter of law.


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uploaded 2002/05/24