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

JEFFREY J GLASER, Employee

DAVES MAGIKIST INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10600503MW


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 decision of the administrative law judge is affirmed. Accordingly, the employer's request for hearing is dismissed, and the department determination remains in effect.

Dated and mailed March 31, 2010
glaseje . usd : 115 : 1 PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


A department determination awarding benefits was dated and mailed on December 19, 2009, and stated on its face that it would become final unless a written appeal was postmarked or received by January 4, 2010.

The employer's appeal was sent and received through facsimile transmission. The date printed by the transmitting machine is December 20, 2009, which is necessarily inaccurate given that the date written on the first page of the transmission, i.e., the date the appeal was prepared by the employer for transmission, is January 4.

Department records indicate that the appeal was received by the department's facsimile machine at 12:30 a.m. on January 5, 2010, and was date stamped by department staff during business hours on January 5, 2010.

The standard for excusing a failure to timely appeal a department determination is "reason beyond control." This is a very rigorous standard, and only extraordinary reasons have been found by the commission to satisfy it. See, Jerome Kosmoski, UI Hearing No. S9900245MW (LIRC March 22, 2000). It was certainly within the employer's control to read the determination when it was received and to note the appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

The employer explains that its appeal was filed after the deadline because of the holidays, "your offices were closed," and it was busy gathering information.

However, the department's offices were not closed on January 4, 2010, the last day for filing the appeal, and the day the employer apparently prepared its appeal.

In addition, although personal and business demands during the holiday season may make attending to other responsibilities more challenging, they do not actually act to prevent one from attending to these other responsibilities and do not, as a result, provide a reason beyond control for filing an untimely appeal. See, In re: Smith, UI Hearing No. 04601400MW (LIRC March 16, 2004); Pettit v. Teksystems, Inc., UI Hearing No. 04402968AP (LIRC Sept. 14, 2004).

Finally, although the information being gathered may have been useful to the employer in preparing for hearing, the employer did not need it in order to craft and file a timely appeal. See, e.g., Trego v. Seagull Aviation Parts, Inc., UI Hearing No. 02403884AP (LIRC March 7, 2003); Minnick v. General Motors Corp., UI Hearing No. 03008018MD (LIRC Feb. 5, 2004).

The employer has failed to offer a reason beyond its control for its untimely appeal of the department determination.



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