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

KEITH A MLODIK, Employee

ALMOND BANCROFT SCHOOL DISTRICT, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05000194MD


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 initial determination shall remain in effect.

Dated and mailed June 23, 2005
mlodike . usd : 164 : 1  PC 711

James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

In the petition for commission review and supporting brief the employee's attorney argues that no bona fide agency relationship was ever established, that the employee did not testify he asked Mike Ivey to serve as his agent, and that it is not clear the employee was even capable of delegating such duties. The commission has considered this argument, but finds it unpersuasive. The evidence indicates that, after filing his UI claim, the employee went into an in-patient treatment facility where he remained during the entirety of the appeal period. The commission has held that a party who is absent or unavailable during the pendency of an unemployment appeal is expected to make arrangements for a responsible person to monitor his mail and to have some mechanism in place for timely response to time-sensitive documents from the department. See, Hopkins v. Bosackis Rentals Inc. (June 20, 2000). Here, the evidence indicates that the employee's wife received the employee's mail and was in contact with the employee while he was in treatment. It is apparent that the employee's wife was acting as his agent during the employee's absence, and that she chose to delegate the task of filing an appeal to Mr. Ivey, the employee's union representative, who was also assisting the employee to challenge his discharge. Under all the circumstances, the commission is persuaded that any negligence on Mr. Ivey's part is properly imputed to the employee, whether or not he personally requested Mr. Ivey's assistance.

Next, the employee's attorney argues that, on the assumption Mr. Ivey was indeed the employee's agent, this case is like Rosendale v. Alaily, Inc. (LIRC, March 24, 2000), in which the commission held that the employee had a right to wait until the last day to file her petition and that her illness occurring on the twentieth day, which prevented her from appealing, was a matter beyond her control. However, the two cases are readily distinguishable on their facts. In Rosendale, the employee's illness was unforeseeable, and she reasonably believed she would be able to file her petition prior to the end of the appeal period. By contrast, in the instant case the employee's agent had been ill for several days prior to the end of the appeal period, and was getting progressively worse. The record indicates that Mr. Ivey was aware he could not handle all of his work and was prioritizing by doing those tasks which he deemed absolutely necessary. However, while Mr. Ivey knew that the employee's appeal was a time-sensitive matter, he took no steps to handle it immediately or to ensure that someone else did so for him, nor did he notify the employee's wife he would be unable to file the appeal. Although Mr. Ivey's illness is certainly unfortunate, the commission is unable to conclude that to file a timely appeal was a matter beyond his control. Accordingly, the appeal tribunal decision is affirmed.

cc:
Attorney Jeffrey T. Jones
Mary E. Pitassi



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


uploaded 2005/06/27