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

DARRELL L SMAZAL, Employee

MARSHFIELD HOMES DIVISION, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04001587MD


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

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 was approximately three months late in filing his request for hearing in the present case, and the issue is whether his request for hearing was late for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4). The commission concludes that it was, and so reverses the appeal tribunal dismissal decision.

The employer had discharged the employee for engaging in a fight at work and, when the employee filed a claim for unemployment insurance, the initial determination held that the discharge had been for misconduct for unemployment insurance purposes. After the expiration of the appeal period, through mediation between the employer and the employee's collective bargaining representative, the discharge was converted to a disciplinary suspension. Once the discharge had been converted to the suspension, the employee filed his request for hearing. The conversion of the discharge to a suspension is relevant, because when a discharge has been converted to a suspension the unemployment insurance issue is the suspension and not the prior discharge. See Seach v. United Parcel Service, Inc., UI Dec. Hearing No. 03004424JV (LIRC March 2, 2004). Indeed, this position has been upheld in court. See Milwaukee Transport Services, Inc., v. LIRC, Case No. 96 CV 000989 (Milwaukee Cty. Cir. Ct. August 21, 1996).

By operation of Wis. Stat. § 108.09(4), a party who filed a late request for hearing is only entitled to hearing on the "merits" if the request was late for a reason beyond the party's control. In the present case the issue for unemployment insurance purposes, the disciplinary suspension, was not yet in existence when the appeal period from the adverse December 4, 2003 initial determination ended, on December 18, 2003. As such, the conversion from discharge to suspension is a reason beyond the employee's control justifying his late request for hearing.

The commission therefore finds that the employee's late appeal was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, the employee is entitled to hearing and decision on the issue whether his disciplinary suspension was for good cause within the meaning of Wis. Stat. § 108.04(6).

Dated and mailed May 21, 2004
smazada . urr : 105 : 1   PC 711  MC 676.2

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, 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 conversion of the discharge to a disciplinary suspension, having occurred after the end of the appeal period from the initial determination, as a matter of law constitutes a reason beyond control for the employee's late appeal. The commission analogizes this situation to that where an employer is late appealing a Department of Workforce Development decision because of a subsequent criminal conviction for the conduct for which the employer discharged the employee. In that context, the fact of the conviction generally justifies the employer's late appeal.


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uploaded 2004/05/24