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

STEPHANIE J HAMPTON-PIERICK, Employee

TENDER CARE ANIMAL HOSPITAL, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 03004784MD


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 employer.

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 24, 2003, the last day on which a timely petition for review could have been filed was August 14, 2003. The petition for review was postmarked January 31, 2004. It was received February 2, 2004.

The employer explains that, after the hearing in this matter, the employee pled guilty and was convicted of the theft for which she was discharged, and that this information was not available to the employer until the deadline for appealing the appeal tribunal decision had expired.

Although the commission has, after the expiration of an appeal period, granted requests, pursuant to Wis. Stat. § 108.09(6)(c), (1)  to set aside an appeal tribunal decision when an employee has pled guilty to the relevant offense or has been convicted after a not guilty plea  (see, Krispin v. Ameri-King/Burger King, UI Hearing No. 00001536WU (LIRC May 10, 2000); Puckett v. Samuels Recycling Co., UI Hearing No. 95000269JV (LIRC Sept. 21, 1995)), the commission has declined to do so pursuant to a no contest plea, relying on In Matter of Estate of Safran, 102 Wis.2d 79 (1981) (a criminal conviction based on a plea of no contest is generally not admissible in a subsequent civil action as evidence of the facts on which the conviction is based). The commission declines to do so here since the employer has failed to present as a part of its petition a certified judgment of conviction establishing that such judgment related to the conduct at issue here, and was imposed pursuant to a guilty plea or following a not guilty plea, and not pursuant to a no contest plea.

The employee has offered no other reason for filing an untimely petition for commission review.

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

DECISION

The petition for review is dismissed.

Dated and mailed March 12, 2004
hamptst2 . upr : 115 : 3   MC 617  PC 731  PC 740 

David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


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Footnotes:

(1)( Back ) "On its own motion, for reasons it deems sufficient, the commission may set aside any final determination of the department.within 2 years from the date thereof upon grounds of mistake or newly discovered evidence."


uploaded 2004/03/15