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

MONICA D LASKA, Employee

THE BEAUTY NOOK, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 10202818EC


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. On January 28, 2011, the commission issued a decision affirming the appeal tribunal decision which dismissed the employee's request for hearing. The employee on February 21, 2011, filed an electronic petition of the commission's decision. On February 23, 2011, the employee was sent a letter by commission staff explaining that the commission had already reviewed her case and that she could not file another petition. The employee thereafter requested copies of documents from her file, specifically her appeal, the synopsis of the hearing, the appeal tribunal decision and the commission's decision. The employee on March 9, 2011, sent a request for reconsideration.

Pursuant to its authority in Wis. Stat. § 108.09(6)(c), the commission sets aside its earlier decision. The commission has reconsidered the evidence in the record, and based on its review, the commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department's determination in this matter was dated and mailed by the department on September 3, 2010. The last day for postmarking and/or filing a timely appeal was September 17, 2010. The appeal and request for hearing was received by the department on September 21, 2010.

The department mailed the determination to the employee's correct mailing address. The employee received and read the document before the appeal deadline. She was aware of the due date for the appeal. The employee attempted to file her appeal via fax machine on September 13, 2010, from a business she had used in the past to fax documents. The business workers gave the employee a copy of her fax and told her it went through. However, the transmission was not successful. Indeed the employee was provided a transmission receipt from the business indicating that her fax had not been successfully completed. The employee did not read the fax transmission receipt until after the appeal deadline had passed. The employee then faxed another, this time successful, appeal.

The issue to be decided is whether the employee's failure to file a timely request for hearing was for a reason beyond her control.

Wis. Stat. § 108.09(2r) and (4)(c) provides, in part, as follows:

(2r) Hearing request. Any party to a determination may request a hearing as to any matter in that determination if such request is made in accordance with procedure prescribed by the department and is received by the department or postmarked within 14 days after a copy of the determination was mailed or given to such party, whichever first occurs.

(c) Late appeal. If a party files an appeal which is not timely, an appeal tribunal shall review the appellant's written reasons for filing the late appeal. If those reasons, when taken as true and construed most favorably to the appellant, do not constitute a reason beyond the appellant's control, the appeal tribunal may dismiss the appeal without a hearing and issue a decision accordingly. Otherwise, the department may schedule a hearing concerning the question of whether the appeal was filed late for a reason that was beyond the appellant's control. The department may also provisionally schedule a hearing concerning any matter in the determination being appealed. After hearing testimony on the late appeal question, the appeal tribunal shall issue a decision which makes ultimate findings of fact and conclusions of law concerning whether the appellant's appeal was filed late for a reason that was beyond the appellant's control and which, in accordance with those findings and conclusions, either dismisses the appeal or determines that the appeal was filed late for a reason that was beyond the appellant's control. If the appeal is not dismissed, the same or another appeal tribunal established by the department for this purpose, after conducting a hearing, shall then issue a decision under sub. (3)(b) concerning any matter in the determination.

Wis. Admin. Code § DWD 140.01(2)(a) provides:

(2) TIME LIMIT FOR FILING. (a) An appeal shall be filed after a copy of the determination is mailed or given to a party, whichever first occurs, as specified under ss. 108.09 or 108.10, Stats. If a party first receives a determination after the statutory appeal period has expired and through no fault of that party, the statutory appeal period as specified under ss. 108.09 or 108.10, Stats., shall extend from the date the party receives the determination. An appeal received within these time limits is timely filed. If the deadline for filing an appeal falls on a Saturday, Sunday, any of the holidays enumerated under ss. 230.35 (4) (a) and 995.20, Stats., or any other day on which mail is not delivered by the United States postal service, then the deadline shall be extended to include the next business day.

The employee contended that her request for hearing was late for a reason beyond her control. The commission agrees.

The employee did not wait until the last minute to appeal but sent her appeal by fax three days prior to the appeal deadline. She had used this business to send faxes in the past without any problems. The employee had been informed by the business that the fax had been sent. The employee reasonably relied upon what she had been told by the business in light of the fact that she had used this business to send faxes successfully in the past.

In prior decisions, the commission has concluded that a person who uses a fax machine to file a petition is responsible for ensuring that the fax was successfully transmitted. See Williams v. Certco Inc., UI Dec. No. 04002130MD (LIRC July 9, 2004). Furthermore the commission's rules with respect to faxing petitions indicate that the individual petitioning by fax is responsible for its timely receipt and informs parties that the commission is not responsible for errors or failures in transmission. Wis. Admin. Code § LIRC 1.025(3). By contrast, the department's rules do not specifically caution parties that they are responsible for errors or failures in transmissions of faxes.

The employee in this case was filing a request for hearing, not a petition. In addition, the employee in this case was not faxing her appeal herself. Rather, she took it to a business to have it faxed. Had she faxed the appeal herself it clearly would have been her responsibility to check the fax receipt to ensure the fax went through. Given the particular circumstances in this case the commission concludes that it was beyond the employee's control to file a timely request for hearing.

The commission therefore finds that the employee's failure to file a timely request for hearing was for a reason beyond her control, within the meaning of Wis. Stat.§ 108.09(4)(c) and Chapter DWD 140 of the Wisconsin Administrative Code.

DECISION

The commission's prior decision, dated January 28, 2011, is set aside. The decision of the administrative law judge is reversed. Accordingly, the employee's request for hearing on the merits is granted. A hearing will be held as soon as possible.

Dated and Mailed April 19, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner



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