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

PA SHOUA PHA, Employee

WAL MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 04611575MW


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 of Workforce Development received the employer's request for hearing on December 20, 2004, and the issue is whether the employer's hearing request was timely. The commission concludes that it was, and so reverses the appeal tribunal dismissal decision.

The employer's actual request for hearing is a letter dated December 15, 2004. That was the deadline for a timely appeal of the adverse December 1, 2004 initial determination in the case. The request for hearing was received by the Madison Benefit Center of the Division of Unemployment Insurance of the Department of Workforce Development on December 20, 2004, three business days after December 15. There is no envelope in the file accompanying the request for hearing, so there no longer is a way to determine the date upon which the request for hearing was postmarked.

The December 15 date on the letter constituting the request for hearing is the best evidence as to the date the employer mailed its request for hearing. The commission therefore finds that the employer's request for hearing was timely within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code ch. DWD 140.


DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits.

Dated and mailed March 18, 2005
phapash . urr : 105 : 1  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 dismissal decision in this case. The administrative law judge issued his decision based only upon written submissions by the employer; for this reason, witness credibility obviously was not a factor in the administrative law judge's decision. Indeed, the commission's reversal was based upon written submissions received in response to the appeal tribunal dismissal decision. The employer sent its request for hearing to the Madison Benefit Center, and not to the address parties are directed to send requests for hearing to: one of the Division's Hearing Offices. Wisconsin Admin. Code § DWD 140.01(2)(b)1, however, allows requests for hearing to be filed with unemployment insurance offices. Wisconsin Admin. Code § DWD 100.02(66) defines unemployment insurance office to mean an office of the division responsible for the processing and adjudication of unemployment insurance claims. The benefits center falls within this definition, so the employer's appeal cannot be considered late because the employer sent it to the wrong address. The lack of envelope in the file appears to be due to the benefit center's practice of not saving envelopes. Whether or not this is the center's general practice, its failure to retain the envelope in which the employer sent the request for hearing prevents the employer from establishing via envelope postmark that its request for hearing was timely. For this reason, the date on the letter constituting the request for hearing is the best evidence of the timing of the employer's appeal. For this reason, the commission has found the appeal timely.

 

cc: Wal-Mart Associates, Inc. (Milwaukee, Wisconsin)


phapash.urr

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2005/03/25