CRYSTAL C SMITH, Employee

DOMINOS PIZZA, 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 petition for review was filed by the employee.

Wisconsin Stat. § 108.09(6)(a) provides, in relevant part, as follows:

"The department or any party may petition the commission for review of an appeal tribunal decision, pursuant to commission rules, if such petition is received by the department or commission or postmarked within 21 days after the appeal tribunal decision was mailed to the party's last-known address. The commission shall dismiss any petition if not timely filed unless the petitioner shows probable good cause that the reason for having failed to file the petition timely was beyond the control of the petitioner . . ."

Wisconsin Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. 'Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing . . ."

Wisconsin Admin. Code § LIRC 2.01(1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on May 24, 2006, the last day on which a timely petition for review could have been filed was June 14, 2006. The petition for review was sent and received through facsimile transmission on June 19, 2006.

In her explanation to the commission, the employee states, "The reason why my appeal was late due to the fax machine that I used wasn't working properly, so that's when I used a different one that following day."

In her petition, the employee states, "I faxed this letter to the phone number above on the 6-14-2004 [sic]..."

The commission infers from these statements that the employee is claiming that she originally attempted to fax her petition for commission review on June 14, 2006, the last day of the appeal period; discovered some time later that the petition had not been successfully transmitted on that date; and, using a different fax machine, successfully transmitted her petition on June 19, 2006.

When a document is successfully faxed, the transmitting machine will generate a confirmation of receipt form. It was within the employee's control on June 14 to verify whether such a form had been generated by the fax machine she was using to transmit her petition. Her apparent failure to do so does not excuse her untimely filing. See, Williams v. Certco, Inc., UI Hearing No. 04002130MD (LIRC July 9, 2004) (within employee's agent's control to verify if transmission of petition had been successful by retrieving confirmation of receipt form or making proper inquiries if form not generated); Magritz v. Tumbleweed Mexican Restaurant, UI Hearing No. 04601061MW (LIRC May 27, 2004) (even if the fax machine was not functioning properly, within employer's control to confirm fax transmission).

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09(6)(a).

The petition for review is dismissed.

Dated and mailed July 7, 2006
smithcr . upr : 115 : 4   PC 731

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

Robert Glaser, Commissioner

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uploaded 2006/07/10