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

ALAN M MASCHERI, Employee

MATHERS IMPROVEMENT SERVICE LTD, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03605258RC


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A petition for review was filed by the employee.

Wisconsin Stat. § 108.09 (6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wisconsin Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on July 21, 2003, the last day on which a timely petition for review could have been filed was August 11, 2003. The employee' petition was received September 15, 2003.

The employee, in his reasons for late petition for commission review form, indicated that he mailed a timely petition but that the department did not receive it. On October 23, 2003, the commission remanded this matter for a hearing. The employee testified that he prepared his petition and mailed it about three days after receiving the appeal tribunal decision. The employee did not receive a response and contacted the department. He was told that the department had not received the petition. He asked the department worker what he should do and she sent him an appeal form. He returned the form and a copy of his petition.

In this case, the employee mailed his petition in a timely manner, but it was not received by the department. The employee testified that he mailed it to the department, and he did not indicate that it was returned in the mail as undeliverable or incorrectly addressed. This and the employee's credible testimony suggest that the petition was lost or misdelivered. The fact that his petition was not delivered was not within his control.

The commission therefore finds that the petition for commission review was not timely and that the employee has shown probable good cause that the reason for having failed to file the petition timely was beyond the employee's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employee worked approximately three months as a roofing laborer for the employer, a home improvement business. His last day of work was December 5, 2002 (week 49).

Around Thanksgiving of 2002, the employee approached the employer's owner, mentioned that he had difficulty working in cold weather because of prior incidents of frostbite, and asked for a layoff. They discussed the issue a few more times and, on December 5, 2002 (week 49), the owner granted his request because the weather continued to get colder.

The initial issue to be decided is whether the employee quit or was discharged. If the employee quit, a secondary issue is whether the employee's quitting was for any reason that would allow immediate benefit payment. If the employee was discharged, a secondary issue is whether the employee's discharge was for misconduct connected with his employment.

The employee contended that the employer laid him off, or discharged him, on December 5, 2002 (week 49). The commission agrees.

"The commission has held that if an employer agrees to lay an employee off, at the employee's request, the employee is discharged. See Miller v. ABCO Building Corp., UC Hearing No. 97-607240 (LIRC Feb. 5, 1998); Daniel Jandourek v. Rogers Electric, UC Hearing No. 97401954 (LIRC Dec. 5, 1997). The rationale is that it is ultimately the employer's choice whether to lay the employee off or not. Here, the employer agreed to lay the employee off. The employee was therefore discharged. The employer had the right to decline to lay the employee off thus leaving it to the employee whether to sever the employment relationship. A mere request to be laid off, however, does not constitute a severing of the employment relationship because it depends on the employer's acquiescence". Alan M. Greuel v. Jimm Greeley Signs & Awnings Inc. (LIRC June 12, 1998).

In this case, the employer agreed to lay the employee off. Therefore, it was the employer that ultimately determined that the employment relationship should end. Therefore, the employer discharged the employee.

The employer has not suggested nor presented evidence to establish that the employee's discharge was for misconduct connected with his work. The commission therefore finds that in week 49 of 2002, the employee was discharged from his employment but not for misconduct connected with his work within the meaning of Wis. Stat. § 108.04(5).

DECISION

The petition for review is not dismissed. The appeal tribunal decision is reversed. Accordingly, the employee is eligible for benefits beginning in week 19 of 2002, if he is otherwise qualified.

Dated and mailed January 21, 2004
maschal3 . upr : 145 : 8  PC 731  MC 626  VL 1007.01 

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The commission did not reverse the ALJ because of a different assessment of witness credibility. Instead, the commission reached a different legal conclusion when applying the law to the facts found by the ALJ.


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