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


TODD M MAES, Employe

LAKESHORE AUTOMOTIVE WHOLESALE INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97400173AP


FINDINGS OF FACT AND CONCLUSIONS OF LAW

On December 20, 1996, the Department of Workforce Development issued an initial determination which held that the employe failed to present sufficient evidence that he made an adequate search for work, and that the employe intentionally concealed information pertaining to his work search effort. The last date for a timely request for hearing on the adverse determination was January 3, 1997. On that date, the employe sent by facsimile transmission a typewritten request for hearing, with his name and social security number typed (but without a signature). The employe sent his request for hearing directly from his computer to the department's fax number, and so could not sign it. On January 7, 1997, the Fox Valley Hearing Office sent the employe a form for the employe to sign. He returned it shortly thereafter, but of course the January 3 deadline for a timely request for hearing had passed. On February 24, 1997, a department administrative law judge issued an appeal tribunal decision dismissing the employe's request for hearing on the ground that it had not been signed. The commission reverses the appeal tribunal decision.

The commission acknowledges section ILHR 140.02 (1) of the Wisconsin Administrative Code, which at the time in question provided that a hearing request shall be signed by the appellant or its attorney or agent. The commission recently concluded that this requirement is "directory" rather than "mandatory." Hoffman, involving Trade Act of 1974, Hearing No. 93605850MW (LIRC, 12/10/93). Courts construe the word "shall" as "directory" rather than as "mandatory" when no penalty is expressly imposed for failing to perform the act in question, when the consequences of failing to perform the act are minor, and when the statutory requirement in question is procedural rather than substantive. See State ex rel. Werlein v. Elamore, 33 Wis. 2d 288, 293, 147 N.W.2d 252 (1967) and Cross v. Soderbeck, 94 Wis. 2d 331, 340-41, 288 N.W.2d 779 (1980). Also relevant is Sutherland's observation that provisions are normally considered directory which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly, and prompt conduct of business, and by the failure to obey which no prejudice occurs to those whose rights are protected by the statute. 2 Sutherland, Statutory Construction (3d), p. 216, sec. 2802 (cited in Werlein, 33 Wis. 2d at 293).

Courts have also consistently found that a printed or typewritten name constitutes "substantial compliance" with a statute requiring a signature. See, e.g., Lanser v. Koconis, 62 Wis. 2d 86, 97, 214 N.W.2d 425 (1974). A typewritten name also meets the most significant purpose of the requirement, finally, the identification of the appellant. The commission therefore concludes that the employe's failure to comply with the signature requirement was only a technical failure, and not a jurisdictional one. The commission therefore finds that the employe's hearing request was 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 to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed: January 30, 1998
maestod.urr : 105 : 1  PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the decision in this matter. The commission's reversal is based upon its analysis of the common law of the state which, of course, is as much a part of the law as the administrative code provision the administrative law judge rotely followed in dismissing the employe's request for hearing.


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