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

TYRONE O HUDSON, Employee

SWISS COLONY INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04005774MD


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 department's determination in this matter was dated and mailed by the department on September 25, 2004. The last day for postmarking and/or filing a timely appeal was October 12, 2004. The appeal and request for hearing was postmarked on October 15, 2004. The issue is whether employee's request for hearing was late for a reason beyond his control; the commission concludes that it was, and so reverses the appeal tribunal decision.

The employee received the initial determination on September 29. He wrote his appeal on October 3 and also mailed it on that date. The employee placed the appeal in a United States Postal Service mailbox that had pickups scheduled for mid-day on Saturdays. Thus, the employee's appeal should have been postmarked no later than October 9, 2004 and, had it been, it would have been timely.

By operation of Wis. Stat. § 108.09(4), a late request for hearing must be dismissed unless it was late for a reason beyond the appellant's control. The employee's request for hearing must be considered late for a reason beyond his control. He placed it in the postal stream at a time which should have led to its being postmarked before the appeal deadline, and the postal service's failure to timely process the employee's appeal is not a matter within the employee's control.

The commission therefore finds that the employee's late request for hearing was so 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, this matter is remanded to the department for hearing and decision on the merits.

Dated and mailed February 15, 2005
hudsoty . urr : 105 : 4  PC 711

/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 administrative law judge did not indicate that the employee's demeanor was a factor in her decision. She expressly held that the 12-day delay in mail collection in the case on its face was not credible. Mail delays happen regularly, however, and are of various durations, and there is nothing incredible about the length of the delay in this case.

 


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uploaded 2005/02/22