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

AMY L LOOSEN, Employee

BUDGET RENT A CAR SYSTEM INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 09605588MW


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:

(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. If the commission's or department's records indicate receipt of the facsimile at a date later than that shown, then the later date shall control.

(4) Except in the case of petitions for review in fair employment and public accommodations cases under s. 106.52 or 111.39(5), Stats., petitions for review may be filed electronically through the internet website of the commission, at the page found at http://dwd.wisconsin.gov/lirc/petition.htm. Successful filing of a petition for review electronically through the internet website of the commission will result in a display on the petitioner's internet browser of a message confirming that the petition has been successfully filed. A petition for review transmitted electronically through the website of the commission is not deemed filed unless and until the confirmation message is displayed. The commission is not responsible for errors in transmission that result in failure of a petition to be successfully filed electronically through the website of the commission. A petition for review filed electronically through the internet website of the commission is deemed filed on the date of filing stated on the commission's electronic record of the filing.

(5) Petitions for review may not be filed by telephone.

The administrative law judge's decision having been dated and mailed on July 15, 2009, the last day on which a timely petition for review could have been filed was August 5, 2009. The petition for review was filed on August 28, 2009.

The employer argued in its petition that its petition was late for a reason beyond the employer's control as the address listed on the appeal tribunal decision is incorrect. Under some circumstances this can amount to a reason beyond control for filing a late petition. As such, the commission, on September 29, 2009, remanded this matter for a hearing on the employer's late petition. A hearing was held on this matter on January 25, 2010. At the hearing the employer's witness explained that while the appeal tribunal decision had been sent to 5300 South Howell Avenue, that had never been the employer's address. The employer's address had always been 5250 South Howell Avenue. However, the employer did indicate that the employer had a lot for cleaning cars at 5300 South Howell. The commission infers from this information that the employer or one of its representatives furnished the 5300 South Howell address to the department. If the address had been one number off it might suggest the problem was a typographical error by the department. However, the fact that there are two numbers that are incorrect suggests that incorrect information was furnished to the department by either the employer or its representative. This inference is further supported by the fact that the employer had a car lot at 5300 South Howell. Finally, the hearing notice had been sent to the 5300 South Howell address and the employer received that, which also had a sticker from the post office. This should have alerted the employer to the fact that the department had an incorrect address, and the employer should have taken steps to get its address updated.

The commission therefore finds that the petition for commission review was not timely and that the employer has not shown probable good cause that the reason for having failed to file the petition timely was beyond the employer's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

DECISION

The petition for review is dismissed.

Dated and mailed February 5, 2010
looseam . upr : 145 : 6 PC 731

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

cc: Budget Rent a Car
Avis Budget Group


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uploaded 2010/02/10