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

DARIUS L WALKER, Employee

JEWISH HOME & CARE CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 07607080MW


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 employer.

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 filed within 21 days from the date of mailing of the findings and decision or order . . .

Wisconsin Admin. Code § LIRC 1.025 provides, in relevant part, as follows:

...(3) Petitions for review may be filed by facsimile transmission. A petition for review transmitted by facsimile is not deemed filed unless and until the petition is received and printed at the recipient facsimile machine of the commission or of the division of the department to which the petition is being transmitted. The party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt. The commission is not responsible for errors or failures in transmission. A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition....

The administrative law judge's decision having been dated and mailed on November 26, 2007, the last day on which a timely petition for review could have been filed was December 17, 2007. The petition for review was filed on December 18, 2007.

The petition was sent and received through facsimile transmission. The transmitting machine imprinted on the petition the following:

c 18  07    01:01 a    Jewish Home    12624780349    p.1

It is undisputed that the letters not visible before the "c" are "De."

According to the language of Wis. Adm. Code § LIRC 1.025(3) cited above, "A petition for review transmitted by facsimile is deemed filed on the date of transmission recorded and printed by the facsimile machine on the petition." This date here is December 18, the day after the appeal deadline.

The employer asserts that it actually transmitted the petition on December 17 no later than 11:00 p.m. The employer has provided no confirmation of transmission/receipt form or other document substantiating this assertion. Moreover, as provided in Wis. Adm. Code § LIRC 1.025(3), "[t]he party transmitting a petition by facsimile is solely responsible for ensuring its timely receipt;" and "the commission is not responsible for errors or failures in transmission."

When a document is successfully faxed, the transmitting machine will generate a confirmation of transmission/receipt form. It was within the employer's control on December 17 to verify whether such a form had been generated by the fax machine it was using to transmit its petition. 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); Smith v. Dominos Pizza, UI Hearing No. 06602790MW (LIRC July 7, 2006). See, also, Donald M. Schunke, UI Hearing Nos. 05402966GB, 05402967GB (LIRC Jan. 27, 2006).

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).

DECISION

The petition for review is dismissed.

Dated and mailed January 16, 2008
walkeda . upr : 115 : 1   PC 731

James T. Flynn, Chairman

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner


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