Wis.LIRC UC Decision: Adkins, Martha - November 5, 2004 - PC 711 - Hearing, Late Request For Hearing - appeal was filed after the deadline because responsible human resources employee did not attend to it prior to her discharge and it was not discovered by other employees until later - not a reason beyond employer's control - actions of an employer's employees, even if they involve neglect or malfeasance, are imputed to the employer

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

MARTHA R ADKINS, Employee

SEVEN OAKS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04608917MW

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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the employer's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed November 5, 2004
adkinma . usd : 115 : 1 PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

A department determination charging certain benefits to the employer's account, was dated and mailed on September 10, 2004, and stated on its face that it would become final unless a written appeal was postmarked or received by September 24, 2003. The employer's appeal was sent and received through facsimile transmission on September 27, 2004.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000). It was certainly within the employer's control to process the determination when it was received and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The employer explains that its appeal was filed after the deadline because the responsible human resources employee did not attend to it prior to her discharge on September 23, 2004, and it was not discovered by other employees until September 27, 2004. However, the actions of its employees, even if they involve neglect or malfeasance, are imputed to the employer, and the commission concludes, as a result, that the employer has failed to offer a reason beyond its control for its untimely appeal.

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uploaded 2004/11/15

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