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

GEORGE J BAUMANN, Employee

SIGNICAST CORP, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 08601784WB


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 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:

(1) Petitions for review may be filed by mail or personal delivery. A petition for review filed by mail or personal delivery is deemed filed only when it is actually received by the commission or by the division of the department to which the petition is mailed, except that petitions for review in unemployment insurance cases under s. 108.09 or 108.10, Stats. which are filed by mail or personal delivery are deemed filed when received or postmarked as provided for in s. LIRC 2.015.

(2) Except as provided for in subs. (3) and (4), petitions for review may not be filed by e-mail or by any other method of electronic data transmission.

(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 March 28, 2008, the last day on which a timely petition for review could have been filed was April 18, 2008. The petition for review was filed on April 19, 2008.

The employee's appeal was received by fax at 12:04 on April 19, 2008. The employee testified that he faxed his petition a few minutes before midnight. Exhibit 4 is the department's fax transmissions journal. This showed a fax received at 12:00 a.m. on April 19. The lead worker from the Milwaukee hearing office testified that the fax machine was checked periodically to ensure that the time was accurate. However, there was no evidence about when the machine was last checked. The lead worker was not aware of whether the fax machine records the time when the fax is first received or when it is finished. Given the employee's testimony in this case that he faxed his petition several minutes prior to midnight, and the fact that it is difficult to ensure that the time recorded by the department's fax log is accurate to the second, the commission finds that the employee's petition was likely received a few seconds prior to midnight and was therefore not late.

The commission therefore finds that the petition for commission review was timely within the meaning of Wis. Stat. § 108.09 (6)(a).

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.

DECISION

The petition for review is not dismissed. The ALJ's decision is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 13 of 2007 and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred. The employee is required to repay the sum of $1,237 to the Unemployment Reserve Fund.

Dated and mailed July 3, 2008
baumage . upr : 145 : 1

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

Ann L. Crump, Commissioner

MEMORANDUM OPINION

The employee, in his petition for commission review, states that the Wisconsin Court System has determined that the employee had not stolen property from the employer. The employee states that he did not hold the keys to the automobile that held the stolen pigs through his shift that night. The employee testified at the hearing that he had one set of keys that day and they were on his person. The employee specifically testified that the alleged co-worker could have gotten into the employee's car despite the fact the co-worker did not have a key, because the employee may have left the door unlocked. In this case, there was a great deal of circumstantial evidence that supports the ALJ's conclusion that the employee intended to steal the employer's pigs. The pigs were in the car that the employee had used and the employee was with the forklift, and by the car when the police spoke to him. The employee alleged that a co-worker had actually driven the car to the workplace but refused to name the co-worker. In addition to the circumstantial evidence, the employee was not credible, his testimony was inconsistent and he admitted at the hearing that he lied to the police officer about the incident. Further, it was not credible that he could not remember the name of a friend and co-worker who supposedly drove the employee's grandmother's car to work. The employer at an unemployment hearing, when it alleges that the employee was discharged for dishonesty must prove by clear and convincing evidence that the incident occurred. This is a lower burden of proof than would be applicable in a criminal case.


 

[ Search UC Decisions ] - [ UC Digest - Main Index ] - [ UC Legal Resources ] - [ LIRC Home Page ]


uploaded 2008/07/18