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

ADAM J HERNANDEZ, Employee

WAL-MART ASSOCIATES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06600253MW



O R D E R

Pursuant to authority granted in Wis. Stat. § 108.09(6), the Labor and Industry Review Commission sets aside the appeal tribunal decision issued on January 25, 2006, and remands this matter to the hearing office to consider whether the employer's request for hearing was untimely filed and, if so, whether it was untimely filed for a reason beyond its control.

Dated and mailed March 3, 2006
hernaad . upr : 115 : 4  PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner



MEMORANDUM OPINION


A department determination that the employee was discharged, but not for misconduct, was dated and mailed on November 12, 2005, and stated an appeal deadline of November 28, 2005.

The employer's appeal, through its agent, UC Express, was received in the Madison Hearing Office on December 1, 2005, three business days after the appeal deadline. This letter of appeal was dated November 28, 2005.

The file indicates that, in January of 2006, an attempt was made to locate the original appeal and the envelope it came in, but they were not found. As a result, there is no record as to when the employer's appeal was postmarked.

In its explanation, UC Express states that the employer's appeal was mailed on November 28, 2005, in a manner that reasonably assured its postmark that day, and its appeal was timely filed as a result.

Pursuant to Wis. Adm. Code § 140.02(2)(c)5., an appeal containing no postmark is considered to have been mailed two business days prior to receipt. Utilizing this standard, the employer's appeal would be deemed to have been mailed on November 29, 2005, one day after the appeal deadline. See, Helser v. Adecco, UI Hearing No. 01000246MD (LIRC April 6, 2001).

However, given that the department apparently discarded the envelope containing the employer's appeal and is responsible, as a result, for there being no postmark to rely upon here, and the employer has represented that it posted its appeal three days prior to its receipt, the commission has decided to accord the employer the opportunity to have the department consider its explanation that it mailed its appeal on November 28, 2005, as it has represented.



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