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

LINDSEY C MAGRITZ, Employee

TUMBLEWEED MEXICAN RESTAURANT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04601061MW


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 March 25, 2004, the last day on which a timely petition for review could have been filed was April 15, 2004. The employer's petition for review was transmitted by facsimile (fax) on April 19, 2004.

The employer explained that its petition for review was late because it was having fax machine problems and was unaware of those problems until Monday, April 19, 2004. The employer further explains that it attempted to fax the 20-page petition on the afternoon of Thursday, April 15, 2004. However, the next morning, it observed an error on the fax machine and faxed the petition again. Apparently no one confirmed that the fax was transmitted on the 15th or on the 16th. Allegedly, the problem was not discovered until the following Monday, April 19, 2003 and the 20-page petition was faxed from a different machine starting at 2:44 p.m. The commission finds it difficult to believe that the employer's fax machine was not operating properly for a period of five days before the problem was discovered especially since there was at least one recognized error. More importantly, even if the fax machine was not functioning properly, the employer failed to provide any explanation for not noticing the error on the 15th, or confirming the fax transmission, when it was faxing the petition on the last possible day.

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 May 27, 2004
magrili . upr : 150 : 1  PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

NOTE: Although the employer attached numerous documents with its petition for commission review, even if the commission had found that the petition was late for a reason beyond its control, the commission's review of this matter would have been based upon the record developed at the hearing. Typically, parties are not allowed to provide additional evidence. Additionally, at the hearing level, parties are expected to bring witnesses with firsthand knowledge because neither the administrative law judge nor the commission may issue ultimate decisions solely upon hearsay evidence.

cc: 
Attorney Faye D. Boom
Tumbleweed Mexican Restaurant (Milwaukee, Wisconsin)


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uploaded 2004/05/28