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

JOHN L ALAR, Employee

MENARD INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11600002MW


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 February 9, 2011, the last day on which a timely petition for review could have been filed was March 2, 2011. The petition for review was filed on March 11, 2011.

The employer testified at its May 2, 2011, hearing that the employer has a relatively large facility and that all mail coming in to the mail room goes to the department that is responsible for it. All unemployment compensation paperwork is to go directly to the employer's witness. The unemployment mail would go to the employer's secretary/paralegal and based on the location of the store that the individual worked at it is forwarded to the employer's witness or one of his colleagues. The employer's witness testified that he received the appeal tribunal decision on March 11, 2011, and that it was stamped by the mail room as being received on March 10. The employer also failed to appear at a hearing scheduled for February 8, 2011, because it did not receive the hearing notice until the morning of February 8. The hearing notice was stamped as received by the mail room on February 7. That hearing notice was mailed to the employer on February 1, 2011. The employer was aware that it had missed the hearing and should have been specifically looking for an appeal tribunal decision.

There are two likely reasons why the employer's witness did not receive department correspondence in a timely fashion. Either it was delivered late by the post office or the employer's mailroom delayed processing it. The commission believes, since there are two pieces of department correspondence which were received late, that it is more likely that the mail was delayed in the mail room. The employer did not present the testimony of any mailroom worker to establish exactly when the appeal tribunal decision or hearing notice was received in the mailroom. The employer's mail handling procedures are a matter within its control.

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 June 16, 2011
alarjo . upr : 145 : 6

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


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