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

ALIDEQ A ROBLE, Employee

GREEN BAY DRESSED BEEF LLC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 06402209AP


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

The initial determination was mailed to the employee's correct address of record on March 1, 2006. He worked in Alaska for three-month periods and did not request that his mail be forwarded to his Alaska address or arrange for someone to attend to his mail at his home address, where he lived with several other non-relatives. He was in Africa from April 2006 until sometime in July before returning to Alaska. He first received the determination upon his return from Alaska in September, at which time, someone assisted him, because of his partial language barrier, to file a late appeal.

The issue to be decided is whether the employee's failure to file a timely request for hearing was for a reason beyond the employee's control.

Wis. Stat. § 108.09(2r) and (4)(c) provide, in part, as follows:

"(2r) HEARING REQUEST.

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.

(4) APPEALS.

(c) Late appeal. If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. . . If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file an appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. . ."

The employee argued that his failure to file a timely appeal was because he was away from his residence and did not receive the determination until September, long after the appeal deadline. Normally this would not constitute a reason beyond a party's control for failing to file a timely appeal. However, the commission notes that this is an unusual situation. In this case, the employee has a partial language barrier. In addition, the initial determination, which was issued on March 15, 2006, concerned a separation that occurred on September 11, 2004. The employee would not normally expect to receive an initial determination about such a remote event, in particular an initial determination that assesses a large overpayment. Under the circumstances, and because the employee, as pointed out by the ALJ, "had no reason to expect any mail from the department in March of 2006," the commission concludes that the employee's failure to file a timely appeal was for a reason beyond his control.

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, this matter is remanded to the Department of Workforce Development for hearing and decision on the merits of the employee's separation from the employer.

Dated and mailed January 25, 2007
robleal . urr : 145 : 1 PC 711

/s/ James T. Flynn, Chairman

/s/ David B. Falstad, Commissioner

/s/ Robert Glaser, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility and demeanor with the ALJ. The commission did not reverse based on a different assessment of witness credibility but rather, reached a different conclusion when it applied the law to the facts found by the ALJ.

 


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