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


LARRY L DAVIS, Employe

SPRING GREEN TECHNOLOGIES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97005605MD


On November 6, 1997, the Department of Workforce Development (department) issued an initial determination finding that the employe quit but not for a reason which would allow the payment of benefits. The last day to timely appeal was November 20, 1997.

The department received the employe's request for hearing on November 21, 1997. On December 18, 1997 the department conducted a hearing before an administrative law judge (ALJ) regarding the timeliness of the employe's hearing request. On December 19, 1997, the ALJ issued an appeal tribunal decision dismissing the employe's request for a hearing on the merits. The ALJ found that the employe failed to establish that his failure to file a timely request for hearing was for a reason beyond his control within the meaning of Wis. Stat. § 108.09 (4).

The employe filed a timely petition for commission review under Wis. Stat. § 108.09 (6).

Based on the applicable law, records and evidence, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department issued an initial determination on November 6, 1997. The last day to timely appeal was November 20, 1997. The employe's appeal was received on November 21, 1997.

The issue is whether the employe's failure to file a timely request for hearing was for a reason beyond his control within the meaning of Wis. Stat. § 108.09 (4)(c) and Chapter DWD 140, Wis. Admin. Code.

On November 18, 1997 the employe met with his attorney in order to consult regarding the filing of an appeal of the department's initial determination. On the following day an appeal was mailed to the address of the department's local office in Lancaster, Wisconsin. The local office, however, had been permanently closed by the department over two years earlier and was not listed as an appropriate place to file an appeal on the standard notice included on the reverse of the initial determination. The employe's hearing request was returned by the post office on November 21, 1997 as undeliverable. The employe's attorney's secretary then sent the employe's hearing request to the department's correct address on that day. The employe's request was one day late.

A timeliness hearing was held and the employe's attorney's secretary testified. The secretary mailed the employe's hearing request on November 19, 1997 one day before the appeal deadline. She explained that she had retrieved a similar hearing request prepared by the attorney from a different file in the firm, and that request had been sent to the Lancaster local office address to which the secretary used on the employe's appeal. As noted above, the Lancaster local office closed on July 15, 1995.

The employe had in his possession at the time of his meeting with the attorney the initial determination which on its reverse side states where to file an appeal: the Madison Hearing Office located on Aberg Avenue. The secretary however did not know that since she only made a copy of the front side of the initial determination and associated that with the employe's file. The secretary also did not know that the department had closed its local office in Lancaster. Instead, she relied on a two year old letter in a similar UC case for the mailing address of the employe's appeal.

The ALJ reasoned that although the employe was not involved in the appeal process, he nonetheless is responsible for the acts of his agents and attorneys and attributed the negligence to him. Consequently, the ALJ dismissed the employe's appeal as untimely.

The commission reverses the appeal tribunal decision. While the commission recognizes long-standing precedent for holding a party responsible for the actions or omissions by an agent, the commission has held in limited circumstances that a party's request for a hearing as untimely for a reason beyond the party's control where the party's agent misaddressed the appeal. See Slamka v. New Berlin Public Schools, (LIRC 4/4/83).

The commission is satisfied that the employe's attorney's secretary committed a mistake that a reasonably prudent person could have made by relying on her firm's files. The closing of the Lancaster office along with all the other local offices was an unprecedented departmental action, that a reasonable person might not anticipate. Because both the employe and the attorney's office acted reasonably within the appeal deadline, the commission concludes that it was beyond the employe's control to have filed a timely appeal under these limited circumstances.

The commission therefore finds that the employe established that the failure to file a timely request for hearing was for a reason beyond that party's control, within the meaning of Wis. Stat. § 108.09 (4)(c) and Chapter ILHR 140 of the Wis. Admin. Code, and therefore is timely within the meaning of Wis. Stat. § 108.09 (2r).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded under Wis. Stat. § 108.09 (6)(d), to the department for a hearing and decision on the merits.

Dated and mailed: March 11, 1998
davisla.urr : 135 : 1 PC 711

/s/ David B. Falstad, Chairman

/s/ James A. Rutkowski, Commissioner

 

Pamela I. Anderson, Commissioner (dissenting):

I am unable to agree with the result reached by the majority herein and I dissent. I would agree with past commission precedent that a party is responsible for the acts and omissions of their agent. The agent's actions were not excusable. The address used for the appeal was from a decision in another client's file that was over two years old. Even if the local office had not closed, addresses change. There was a lot of publicity surrounding the closing of local offices and the attorney should have been aware of the closings. I would not find that the mistake by the attorney was one which a reasonably prudent person would commit.

For these reasons, I would affirm the administrative law judge's decision.

/s/ Pamela I. Anderson, Commissioner

cc: ATTORNEY SHEILA STUART KELLEY
KOPP MCKICHAN GEYER & SKEMP


[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]