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

HENRY L WILLIAMS, Employee

CERTCO INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04002130MD


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 May 11, 2004, the last day on which a timely petition for review could have been filed was June 1, 2004. The employee filed his petition for review by facsimile transmission on June 2, 2004.

The employee's petition for review was late because his fiancée did not know, when she attempted to fax the petition on June 1, 2004, that the machine she was using was not working. The employee concedes that his fiancée did not get a confirmation when she sent the fax in on June 1, 2004; that should have prompted the employee's fiancée  either to inquire why she had not received a confirmation or to confirm that the department had received the facsimile transmission. Since it was within her control to have done either of those things, and had she done so she would have discovered the malfunctioning fax machine and have been able to send the petition for review in another manner, the employee may not use the broken machine to justify his late petition for review. The petition for review thus cannot be considered to have been late for a reason beyond the employee's control, so the above-quoted statutes require dismissal of the appeal.

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 July 9, 2004
willihe . upr : 105 : 1    PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



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uploaded 2004/07/12