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


FRANK JACKSON, Employe

PIECES OF EIGHT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 97607696MW


On September 17, 1997, the Department of Workforce Development (department) issued an initial determination allowing the employe benefits. The last date to timely appeal was October 1, 1997. The employer's request for hearing did not have a United States postal service postmark or a private meter mark on the envelope containing the request. It was received by the department on October 6, 1997.

As a result of the employer's untimely hearing request, a hearing was scheduled to determine whether the employer's late hearing request was for a reason beyond its control. The hearing was held on December 1, 1997 before an administrative law judge (ALJ). On December 5, 1997, the ALJ issued an appeal tribunal decision dismissing the employer's request for a hearing on the merits, finding that the employer failed to establish that its failure to file a timely request for hearing was for a reason beyond its control within the meaning of Wis. Stat. § 108.09(4).

The employer filed a timely petition for commission review under Wis. Stat. § 108.09(6).

Based on the applicable law, records and evidence, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department issued an initial determination on September 17, 1997. The last date to timely appeal was October 1, 1997. The employer's appeal was received on October 6, 1997.

The issue is whether the employer's failure to file a timely request for hearing was for a reason beyond its control within the meaning of Wis. Stat. § 108.09(4)(c) and Chapter DWD 140, Wis. Admin. Code.

At the hearing, two exhibits were received into the record. Exhibit 1 was the department's notice for a hearing addressed to the employer. Exhibit 2 was the employer's representative's hearing request letter and envelope containing the appeal. (See Synopsis pg. 1-2). These exhibits, however, were lost sometime after the hearing but before the case was forwarded to the commission for review. Consequently, the commission cannot conduct a full and fair review of the employer's petition. The envelope containing the employer's hearing request is an important piece of evidence necessary to determine whether it supports the ALJ's finding that the request was received by the department on October 6, 1997. Absent these exhibits the record is not complete and the commission cannot fully review the record. Since the exhibits were lost through no fault of the employer, the commission concludes that it was beyond the employer's control to have filed a timely appeal.

The commission therefore finds that the employer established that its failure to file a timely request for hearing was for a reason beyond its control, within the meaning of Wis. Stat. § 108.09(4)(c) and Chapter ILHR 140 of the Wis. Admin. Code, and therefore is timely within the meaning of Wis. Stat. § 108.09(2r).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded under Wis. Stat. § 108.09(6)(d), to the department for a hearing and a decision on the merits.

Dated and mailed: May 15, 1998
jacksfr.urr : 135 : 1 PC 711 PC 732

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

MEMORANDUM OPINION

Because the hearing exhibits were lost during the processing of the file after hearing, the commission believes that the proper procedure is to grant the employer's hearing request as untimely, but for a reason beyond its control and order a hearing on the merits. Absent the hearing record's exhibits, the commission cannot adequately or completely conduct a full and fair review.


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