CHARLES B JENKINS, Employee

CONLEY PRINTING LLC, 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 decision of the administrative law judge is affirmed. Accordingly, the employee's request for hearing on the merits is dismissed. The initial determination shall remain in effect.

Dated and mailed January 26, 2010
jenkich . usd : 145 : 5 PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

The employee has petitioned for commission review of the adverse appeal tribunal decision. The employee argues that his mother faxed his request for hearing on August 11 from her place of work. The employee then, when he did not hear anything for two weeks, asked his mother to fax the request for hearing again. The ALJ determined that while the department's fax records demonstrate that an attempt was made by the employee's mother's fax machine, the employee did not establish that the problem was with the department's fax machine. For example, the employee did not testify that a receipt was generated by his mother's fax machine. Likewise, the employee did not testify that his mother's fax machine never generated an error message. Therefore the employee did not establish that his request for hearing was late for a reason beyond his control.

The employee explained the normal procedure which occurs at his mother's office. However, the employee did not have his mother testify about those procedures at the hearing. The commission must review the record and cannot make findings based on information in the petition that is not also part of the record.

cc: Conley Publishing Group (Beaver Dam, Wisconsin)

ANN L. CRUMP, Commissioner, (dissenting):

The majority believes that the responsibility for a failed facsimile lies solely with the employee regardless of the circumstances demonstrated in this case. I respectfully dissent from the majority opinion for the following reasons:

1. The facsimile usage log kept by Dodge County Human Services shows an entry of a facsimile sent to the Department, (608) 242-4813, on the original date of August 11 (Exhibit 4), prior to the appeal deadline. The Department (Exhibit 6) shows a record of an incoming facsimile from the number (920) 386-4012. This exhibit demonstrates that a "handshake" tone had been established between the machines on precisely the date the employee claimed. Without this exhibit, there would be no indication a connection was established between facsimile machines.

2. More importantly, Wis. Admin. Code § LIRC 1.025(3) allows petitions for review to be transmitted by facsimile to the Department, but provides that a petition for review is not deemed filed until it is received and printed. However, that administrative rule applies to petitions for commission review, not late requests for hearing. Although the Department could have adopted a similar rule applying that standard to late faxed appeals, it did not do so.

3. It is credible that no report was generated indicating the facsimile appeal was not successfully sent so the employee, in this case, his Mother, had no indication of trouble at the originating machine. The connection was successfully established according to the record. Unfortunately, the Mother, who was present at the hearing, was not called as a witness so we have no way of knowing what actions she took.

4.Finally, given the amount of documentation available in the case that determined a facsimile was sent to the Department on August 11, it is equally possible that an error occurred at the machine in the Department. Wis. Admin. Code § 140.10(2)(c), which governs hearing requests, does not contain any disavowal of responsibility for failures in transmission like that set forth in Wis. Admin. Code § LIRC 1.025(3). Since we have no way of determining where the failure occurred, and there is evidence that a timely request for hearing was sent, the employee established his appeal was late for a reason beyond his control.

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

uploaded 2010/02/10