JUSTIN S LISTON, Employee

US POSTAL SERVICE, Employer

On March 6, 2009, the Department of Workforce Development issued an initial determination which held that the employee's quit of his employment with the employer was not for a reason allowing for immediate eligibility for unemployment insurance. The employee timely filed a request for hearing with the Madison Benefits Center of the department's Unemployment Insurance Division, but the center either did not receive it or did not forward it to the division's Milwaukee Hearing Office (the office responsible for filing Milwaukee requests for hearing). The employee then was late filing his request for hearing with the division's Milwaukee Hearing Office. On May 29, 2009, an administrative law judge of the department issued an appeal tribunal decision dismissing the employee's request for hearing, on the ground that he had not timely sent it to the Milwaukee Hearing Office (as instructed on the reverse side of the initial determination). The employee petitioned for commission review of the adverse appeal tribunal decision; on June 19, 2009, the commission issued a decision affirming and adopting as its own the appeal tribunal's dismissal of the employee's request for hearing.

The employee petitioned the Circuit Court of Milwaukee County for review of the commission's June 19, 2009 decision. In answer to the employee's complaint, the commission admitted that grounds exist, pursuant to Wis. Stat. § 102.23(1)(e)3, for the setting aside of the commission's decision. On September 3, 2009, the Circuit Court issued an order setting aside the commission's June 19, 2009 decision and remanding the matter to the commission for further proceedings.

Based upon the applicable law, and the record and other evidence in the case, the commission issues the following:

On March 6, 2009, the department issued and mailed to the employee an initial determination adverse to the employee's claim for unemployment insurance. On or about March 13, 2009, the employee mailed a written appeal to the Unemployment Insurance Division's Madison Benefit Center, which the center either did not receive or did not forward to the Milwaukee Hearing Office (the office responsible for scheduling the hearing requested). The employee subsequently inquired about the status of his appeal, was told that it had not been received, and filed a second, late request for hearing with the Milwaukee Hearing Office. The issue is whether the employee's request for hearing was late and, if so, whether for a reason beyond his control. The commission answers both questions in the affirmative, and so reverses the appeal tribunal dismissal decision.

Wisconsin Stat. § 108.09(4)(c) requires dismissal of a late request for hearing unless the request was late for a reason beyond the appellant's control. In the present case, the employee's original, timely request for hearing either was not received or was not properly handled by the Madison Benefit Center, in either case a matter beyond the employee's control. Both the appeal tribunal and the commission dismissed the employee's request for hearing nonetheless, on the ground that a direction on the reverse side of the initial determination specifically instructed appellants to send their appeals to the Milwaukee Hearing Office, and it was within the employee's control to have followed that direction.

In fact, however, by law the Madison Benefits Center is a valid site for the filing of an unemployment insurance appeal. Specifically, Wis. Admin. Code § DWD 140.01(2)(b)1 allows a party to file a request for hearing at an unemployment insurance office. Wisconsin Admin. Code § DWD 100.02(66) in turn defines "unemployment insurance office" to include any offices of the department's Unemployment Insurance Division which are responsible "for the processing and adjudication of unemployment insurance claims." The Madison and Milwaukee Benefit Centers are two such offices, however, and so are legally valid sites for the filing of unemployment insurance appeals. That the employee filed his appeal with the Madison Benefit Center therefore cannot be grounds for dismissal of that appeal. The employee's timely appeal either was not received or was not properly handled by the center upon receipt; in either case, the employee's subsequent late appeal would be late for a reason beyond the employee's control.

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

The appeal tribunal decision is reversed. Accordingly, this matter is remanded to the department for hearing and decision on the merits.

Dated and mailed September 22, 2009
listoju . urr : 105 : 1   PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this matter. The basis for the commission's reversal, that the Madison Benefit Center is a valid site for the filing of an unemployment appeal, is a matter of law and not one of credibility.

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uploaded 2009/10/23