RADOJKA MATIJAS, Employee

FOUR POINTS HOTEL, Employer

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:

The employee worked for over one year for the employer. Her last day of work was October 27, 2004. She initiated a claim for unemployment benefits in the week ending December 25, 2004, and she filed weekly thereafter.

A department deputy issued an initial determination that held that in week 47 of 2004, the employee quit her work with the employer and not for a reason that would allow immediate benefit payment. As a result, benefits were suspended. The initial determination was issued on January 11, 2005, and mailed to her current address at that time. The decision stated that it would become final unless a written appeal was received or postmarked by January 25, 2005. The employee's appeal was filed April 14, 2005.

The issue that must be resolved is whether the employee's failure to file a timely appeal was for a reason beyond her control, within the meaning of the statutes.

The employee is not conversant in English, and has to rely on her native language in order to communicate and understand documents. Although she received the initial determination at the end of February or the beginning of March of 2005, she did not respond or appeal until April 13, when she took it to a friend who was conversant in the translation from her native language to English. At that time, she filed the appeal which was received on April 14, 2005.

In her appeal statement, she explained that her appeal was late "because I was not told I would have to file an appeal, because the last representative told me different information about my standing." The employee testified that her son tried to call unemployment a few times. He called the numbers he was given and "was told it was okay to wait to hear from them concerning the benefits." The initial determination may have been delayed in the mail because the employee testified she waited to appeal the initial determination because it took a few days to get the document translated and because she was waiting for a questionnaire she was informed would be sent to her.

In this case, the employee did not receive the initial determination until after the appeal deadline had passed. She had to find someone to translate it for her. The employee also asked her son to contact the department and he was told to wait until he received a questionnaire. It would not be unreasonable for the employee to believe, given that the appeal deadline had passed weeks before she received the initial determination that there was no further need to file an immediate appeal and that she should wait for a questionnaire as the department instructed her to do.

The commission therefore finds that the employee's failure to file a timely appeal was for a reason beyond her control, within the meaning of Wis. Stat. § 108.09(4).

The decision of the administrative law judge is reversed. Accordingly, this matter will be remanded to the department for a hearing and decision on the merits of the case.

Dated and mailed November 16, 2005
matijra . urr : 145 : 1 PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing prior to reversing his decision. The commission did not reverse the ALJ based on a different impression of witness credibility. Only the employee gave testimony in this matter, so the facts were not in dispute. The commission reverses the ALJ's decision because it reaches a different legal conclusion when applying the law to the facts found by the ALJ.

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uploaded 2005/11/22