CHRISTOPHER W JOHNSON, Employee

MILWAUKEE PUBLIC SCHOOL, 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 makes the following:

The department issued a determination on November 19, 2010, which found that the employee quit in week ending January 9, 2010. It further found that four weeks had elapsed after the week of quitting and the employee earned wages in covered employment equaling at least four times his weekly benefit rate. The determination further found that the employee constructively quit his employment when he failed to respond to the employer's request for further information. The determination stated that its "effect" was that the employee had requalified and that benefits were payable. The determination had an appeal deadline of December 3, 2010. The employee filed his appeal on February 14, 2011. As such, his appeal was clearly late.

The issue to be decided is whether the employee's failure to file a timely request for hearing is for a reason beyond the employee's control. The determination in this case indicated that the employee had requalified but did not specify when this occurred. It did not inform the employee that he would not be eligible as of week 2 of 2010, but would only be eligible as of the time he satisfied the requalification requirements. The determination appeared completely favorable to the employee and did not provide sufficient information for him to determine whether he should appeal it. This is a shortcoming of the determination and was beyond the employee's control.

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

The decision of the administrative law judge is reversed. Accordingly, the matter is remanded for a hearing on the merits.

Dated and Mailed April 19, 2011

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

NOTE: The commission did not discuss witness credibility and demeanor with the ALJ who held the hearing, but reverses his decision as a matter of law.

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uploaded 2011/06/03