FATUN A MOHAMED, Employee

MENS WEARHOUSE, 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 agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own.

The employee's petition is accepted for review. The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits in weeks 9 through 21 of 2006. Thereafter, the employee is eligible for benefits, if otherwise qualified.

Dated and mailed December 8, 2006
mohamfa . usd : 115 : 8  PC 731  CP 360

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

The appeal tribunal decision (ATD) at issue was dated and mailed on July 28, 2006, and stated an appeal deadline of August 18. The employee's petition was received August 21. In this petition, the employee states, "I am sorry I received your decision on Fri the 18th, 2006." In her explanation to the commission, the employee states, "My petition was filed late and the reason was that I didn't receive the decision until the 20th of August at that time the deadline was already expired."

The commission, reasoning that, if, in fact, the employee could prove that, through no fault of her own, she received the ATD after the appeal deadline had passed, or so close to the deadline as to reasonably foreclose her ability to file a timely appeal, she could sustain her burden to show that her petition was late for a reason beyond her control. As a result, by order dated September 29, 2006, the commission remanded this matter to the department to give the employee that opportunity.

A remand hearing was conducted on November 8. At this hearing, the employee first testified that she was sure she received a duplicate ATD in the mail on August 18. The ALJ then pointed out to her that, although she had indicated in her petition that she had received a duplicate ATD on August 18, she had indicated in her explanation to the commission that she had received it on August 20, which was a Sunday. The employee then testified that she was confused.

The more credible evidence of record supports a finding that the employee received the duplicate ATD in the mail on Friday, August 18, 2006.

August 18 was the appeal deadline. The employee, through no fault of her own, received the ATD in such close proximity to the appeal deadline as to effectively foreclose her ability to file a timely appeal. The commission, as a result, has accepted her petition for its review.

Merits

The employee initiated a claim by phone on March 8, 2006. According to Wis. Adm. Code § 129.01, however, in order to receive benefits, an individual must not only initiate a claim but also file weekly claim certifications. It is undisputed that the employee failed to file a weekly claim certification until June 1, 2006.

The sole reason offered by the employee for this failure is that she had never filed a claim for benefits before and was unfamiliar with the claims process, and, as a result, did not realize that, in addition to initiating a claim, she also was required to file weekly claim certifications.

The requirement of filing weekly claim certifications may be waived, according to Wis. Adm. Code § 129.01(4) if "exceptional circumstances exist." This code provision includes the following five examples, not intended to constitute an exhaustive list, of circumstances considered to be exceptional:

a) An error relating to the claimant's giving of notice made by personnel of the department, or a reasonable misunderstanding by the claimant based on information given to the claimant by the department.

(b) Action by an employer, in any manner, directly or indirectly, instructing, warning or persuading the claimant not to file a benefit claim.

(c) The claimant did not comply because the claimant was not aware of the duty to notify the department and the claimant's most recent employer failed to post or maintain any notice as to claimant unemployment benefits which has been supplied to the employer as required under s. DWD 120.01.

(d) The claimant performed services as a school year employee in other than an instructional, research or principal administrative capacity and had reasonable assurance of performing services for the employer in a similar capacity in the 2nd academic year or term but was subsequently not offered the opportunity to perform such services.

(e) The claimant made an unsuccessful attempt to access the telephone initial claims system during a week when the system was inoperable or was unavailable for more than 40% of the time the system is scheduled to be staffed by claimstakers during that week.

As the commission stated in Vicki Ellenberger, UI Hearing No. 04605629RC (LIRC May 20, 2005), "while exceptional circumstances are not limited to the five exceptions, all five involve actions by employers or the department resulting in a claimant's failure. As the claimant's failure was not attributable to either, her circumstances do not fall within the spirit of 'exceptional circumstances'." See, also, Levy v. LIRC et al., Case No. 003-742 (Wis. Cir. Ct. Milwaukee Co., Aug. 29, 1988)(possible exceptions other than those listed in the code provision would require fault on the part of someone other than the claimant jeopardizing the ability of the claimant to receive benefits).

The only failure here is attributable to the employee. The employee mistakenly assumed that initiating a claim was all that was required to receive benefits.

Misunderstanding the process does not qualify as an exceptional circumstance. See, Levy, supra. (misunderstanding not exceptional circumstance which would allow waiver of requirement); Maynard Dulak, UI Hearing No. 99605679RC (LIRC Nov. 9, 1999); Thomas v. Hurd Millwork Co., Inc., UI Hearing No. 98201821MW (LIRC March 31, 1999)(fact that employee unaware of claim initiation requirement not exceptional circumstance permitting waiver of requirement).

cc: Men's Warehouse - Glendale, WI

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