Wis.LIRC UC Decision: Brimmer, Glenn - June 14, 2006 - PC 731 LIRC review, late petition - mailman usually picked up mail left on top of mailbox, but did not follow that normal procedure here when employee put out his petition for review - petition late for a reason beyond control; PC 712.1 - Hearing, Failure to Appear - no reason to question claim that hearing notice not received, good cause for non-appearance thus shown

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

GLENN R BRIMMER, Employee

ECI INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 05005758MD

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. On March 23, 2006, the commission remanded this matter for a hearing before an ALJ, acting on behalf of the commission, with respect to whether the employee's petition for commission review was late for a reason beyond his control, and whether the employee had good cause for failing to attend the originally scheduled hearing. That hearing was held on June 2, 2006.

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 hearing was scheduled on the employee's appeal to take place on January 23, 2006. The employee/appellant did not appear at that hearing. Accordingly, his request for hearing was dismissed on January 23, 2006. The last date to file a timely petition for review is February 13, 2006. The employee filed his petition on February 14, 2006.

The first issue to be decided is whether the employee's petition was late for a reason that was beyond his control.

The employee would place his mail on top of his mailbox for his mailman to pick up. The employee placed the appeal out on February 12 or 13; however, the mailman did not take the letter as was normal practice.

The commission finds that the employee acted reasonably in following normal procedures for pick up by the postal service. The employee could not control the fact that his mailperson did not pick up his letter. The commission therefore finds that the employee's petition for review was not timely but that he has established that his petition was late for a reason that was beyond his control within the meaning of Wis. Stat. § 108.09(6)(a).

The next issue to be decided is whether the employee had good cause for failing to attend the January 23, 2006, hearing.

The employee did not attend the hearing because he did not receive the January 11, 2006, notice of hearing. After reviewing the record, the commission has found no reason to question the employee's claim that he did not receive the notice of the hearing.

The commission therefore finds that the employee had good cause for failing to attend the January 23, 2006, hearing within the meaning of Wis. Stat. § 108.09(4)(d).

DECISION

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the hearing office for a hearing and decision on the merits of the case.

Dated and mailed June 14, 2006
brimmgl . urr : 132 : 8 : PC 731 PC 712.1

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

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uploaded 2006/06/20