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

DAVID C LIESCH, Employee

ARBYS RESTAURANTS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06002100JF


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Departmental records reflect that on February 9, 2006 a determination was issued finding that in week 2 of 2006, the employee was discharged from Highway Harry's Inc. and the discharge was not for misconduct connected with the employment. On February 20, 2006, Highway Harry's Inc., appealed the determination. Every department determination explains, on the reverse side,

THIS INFORMATION IS IMPORTANT TO BOTH PARTIES AND SHOULD BE READ IMMEDIATELY

This determination resolves and unemployment eligibility issue. If you have questions about this determination or problems filing weekly claims, CONTACT A CLAIMS SPECIALIST at:

Below this, the department's telephone numbers are set forth for claimants and employers, both local and toll free. The reverse side also informs claimants that they "must continue to file weekly claims" while a determination is under appeal, warning that "you will be eligible for benefits for the week(s) at issue only if you filed a claim for such week(s)."

Departmental records further reflect on February 23, 2006, the employee was notified that Highway Harry's Inc. was appealing the February 9, 2006 determination. The employee ceased filing weekly claims for benefits; his last weekly claim was for the calendar weekending February 18, 2006 (week 7) and was made on February 21, 2006. The actual payment of benefits to the claimant was held during his claim weeks pending the department's resolution of all his eligibility issues.

On February 25, 2006, the determination at issue was mailed, finding that the employee was discharged from the employer, Carisch Inc., d/b/a Arby's Restaurants, for misconduct connected with his employment. The effect of the determination was that

No benefits are payable from 1/29/06 through 3/25/06 and until the employee earns wages equaling at least $4,046.00 in covered employment.

If employment for the employer becomes part of this or any later claim, wages earned prior to the discharge cannot be used to compute the maximum benefit amount for that claim.

The reverse side of the determination explained that the employee had a right to appeal the determination if he disagreed with it. It explained that he "should submit a separate request for each determination you want to appeal," it set forth the appeal procedures and it defined a timely appeal.

On March 13, 2006, departmental records reflect that the employee attended an unemployment insurance hearing involving the issue of his eligibility for benefits based upon the discharge from Highway Harry's Inc. On March 15, 2006, an appeal tribunal decision was issued affirming the determination; specifically it found that the employee's discharge from Highway Harry's Inc. was not for misconduct connected with his employment and he "was eligible for benefits, if otherwise qualified."

On May 24, 2006, the employee mailed a letter to the Unemployment Insurance Hearing Office providing, as follows:

I am writing to request an appeal on the determination upon which I have been entitled to. I have already been to an appeal hearing for judgement from HiWay[sic] Harrys restaurant, of which I have won and await unemployment compensation for. I received my judgement on or around March 17, 2006, from that appeal. Please contact me as soon as possible, to proceed with receiving the checks I am entitled to.

On May 25, 2006, after receiving the employee's late appeal, the Madison Hearing Office mailed him a questionnaire seeking explanation of the late appeal. The questionnaire warned the employee

If we do not hear from you within 7 days of the date of this letter, your appeal will be dismissed and the determination will become final.

As of June 5, 2006 the employee had not returned the questionnaire and an appeal tribunal decision was issued dismissing the claimant's request for hearing.

On June 7, 2006, the employee mailed the completed questionnaire to the Madison Hearing Office. The employee's answers indicated that he received the determination in March but had not read the reverse side. He then wrote that he

was unaware I had to appeal to Arbys, in order to receive benefit checks from Hi-Way[sic] Harry's. Hi-Way[sic] Harry's appealed to the original determination, so I attended the appeal hearing, which I won and the determination stood. I received the determination (1)  on or around March 17, signed by Greg Smith. I still have received no benefit checks, and patiently await money already supposed to come from the Hi-Way[sic] Harrys determination.

The questionnaire was forwarded to the commission for further action. Wis. Stat. § 108.09(6)(a) provides that a party may petition the commission for review of an appeal tribunal decision, if such petition is received within 21 days after the decision was mailed. As such, the commission treats the questionnaire as a timely petition for commission review and takes action pursuant to Wis. Stat. § 108.09(6)(d).

The issue to be decided is whether the employee is entitled to a hearing on the merits of the February 25, 2006 determination.

Wis. Stat. § 108.09(2r), Hearing request provides,

Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs.

Wis. Stat. § 108.09(4)(c), late appeal, provides in relevant part,

If a party files an appeal which is not timely, an appeal tribunal shall review the appellant's written reasons for filing the late appeal. If those reasons, when taken as true and construed most favorably to the appellant, do not constitute a reason beyond the appellant's control, the appeal tribunal may dismiss the appeal without a hearing and issue a decision accordingly. . .

In this case, although the employee originally received a determination indicating that he was eligible for unemployment insurance benefits based upon his separation of employment with Highway Harry's Inc., which was appealed by Highway Harry's Inc., the subject determination denied him benefits based upon his separation from Arby's Restaurants. Because the determination denying benefits with Arby's was issued after the determination allowing benefits with Highway Harry's Inc., the employee could not reasonably believe that Highway Harry's Inc. allow decision superseded the Arby's denial. See Windau v. Manpower Temporary Services, UI Dec. Hearing No. 02008043WK (LIRC July 25, 2003). The "Arby's" determination, set forth its denial of benefits as well as the appeal rights and procedures, yet the employee concedes in his petition that he did not read them. It is within a party's control to thoroughly read determinations that are sent and to act in a prompt fashion. Thelen v. Tom's Quality Millwork Inc., UI Dec. Hearing No. 99003677MD (LIRC December 22, 1999). For these reasons, the commission finds that the employee's failure to file a timely appeal was not for reasons beyond his control and affirms the dismissal of his late appeal.

The commission therefore finds that the employee's appeal was late but not for a reason beyond his control, within the meaning of Wis. Stat. § 108.09 (4)(c).

DECISION

The decision of the administrative law judge is affirmed. Accordingly, the appeal is dismissed. The determination issued on February 25, 2006 shall remain in effect.

Dated and mailed July 21, 2006
liescda . urr : 150 : 8   PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner


cc: Arby's - Watertown, WI


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Footnotes:

(1)( Back ) Referencing the March 15, 2006 appeal tribunal decision issued by administrative law judge Gregory Smith.

 


uploaded 2006/07/24