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

LINDSEY JANOWIAK, Employee

FLIGHT SERVICES & SYSTEMS INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10604730MW


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 June 28, 2010
janowli . usd : 115 : 5  PC 711

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

MEMORANDUM OPINION


A department determination finding that the employee had quit with good cause attributable to the employer was dated and mailed on April 17, 2010, and stated on its face that it would become final unless a written appeal was postmarked or received by May 3, 2010.

This determination was mailed to the employer at its address of record, i.e., 6100 Rockside Woods in Cleveland, Ohio.

The file in this matter indicates that the employee had worked for the employer at a location in Milwaukee, Wisconsin.

The employer's appeal was filed on May 11, 2010. The appeal was signed by Dave Papajcik, HR Administrator, and was prepared on stationery with a letterhead containing the employer's Cleveland address.

The employer explained to the department that it received the determination on April 21, 2010, but it did not file its request for hearing before the appeal deadline because "manager of location where claimant worked was at training sessions and not available." This explanation was signed by Mr. Papajcik.

In its petition for commission review, signed by Mr. Papajcik, the employer explains that "due to training session the manager of our operation at General Mitchell International Airport was not as accessible as he usually is."

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 on April 21 and to note the May 3 appeal deadline. See, Thelen v. Toms Quality Millwork, Inc, UI Hearing No. 99003677MD (LIRC Dec. 22, 1999).

Presumably, the employer's explanation for its untimely appeal is that, even though it received the determination at its Cleveland headquarters on April 21, its Milwaukee manager was attending a training session during the appeal period and could not be easily reached.

However, the standard is "reason beyond control," not "inconvenient."

The employer does not contend, nor is it reasonable to infer, that it was beyond the employer's control to consult with the Milwaukee manager between April 21 and May 3, 2010. Moreover, even if that were true, it was within the employer's control, realizing that its ability to appeal would expire on May 3, to have filed an appeal to preserve its appeal rights until the Milwaukee manager was again available. Finally, it was the employer's responsibility, and within its control, to establish a reliable mechanism for responding to time-sensitive documents from the department during the Milwaukee manager's absence from his office. See, Hopkins v. Bosackis Rentals, Inc., UI Hearing No. 00603199MW (LIRC June 20, 2000)(within employer's control to establish mechanism for responding to time-sensitive documents from the department during owner's absence from work site); Stelse v. Nutrition First Processing, UI hearing No. 04000816MD (LIRC March 16, 2004)(within employer's control to have mechanism in place for responding to time-sensitive documents from the department during absence of worker responsible for handling unemployment insurance matters).

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



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uploaded 2010/08/11