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

EVAN B MARTEL, Employee

MITCHELLS FISH MARKET, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 11607036MW


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:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The employer's representative TALX, received the department's determination mailed July 7, 2011, on July 13, 2011, which was before the appeal due date of July 21, 2011.

The employer's agent wrote an appeal letter dated July 21, 2011. On July 21, 2011, the employer's representative tried to fax the appeal but received a message of a failed fax transmittal at 1:33 p.m. Sometime after receiving this message, that same day, the employer's agent placed the appeal letter in its internal mail system. The employer's agent relies upon a third party courier to forward its mail from its internal mail system to the U.S. Postal Services.

The employer's representative's appeal letter was received by the department on July 26, 2011.

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

Wisconsin Stat. § 108.09(4) (c) provides:

(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.

The employer's agent testified that she placed the July 21, 2011, appeal letter in the agent's internal mail service the same day she wrote it. She testified that it was processed and sent to the post office by a courier service. The employer did not testify how the third party courier processed the mail or what its procedures were to ensure that it was mailed on the same day the courier picked up the mail. However, the employer's agent testified that the appeal was prepared on July 21, and put in an outgoing mail area with the expectation it would be mailed on that day. The appeal appears to have been sent to the Milwaukee Benefit Center at P.O. Box 909999, Milwaukee, Wisconsin, 53209-0999. When the department received the appeal it did not retain the envelope. The appeal was sent on Thursday, July 21, and was stamped received by the department on Tuesday, July 26. The appeal was mailed from St. Louis, Missouri. Given the short amount of time which passed between the appeal being mailed and received, and the absence of an envelope with a postmark, the commission is reluctant to conclude that it was not mailed on July 21, 2011.

The commission therefore finds that it was not established that the employer failed to file a timely request for hearing, within the meaning of Wis. Stat. § 108.09(4).

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employer's request for hearing is not dismissed. This matter is remanded for a hearing and decision on the merits of the case.

Dated and mailed February 14, 2012

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

Laurie R. McCallum, Commissioner

MEMORANDUM OPINION

The commission did not discuss witness credibility with the ALJ who held the hearing as it did not reverse the ALJ's decision based on a differing assessment of witness credibility and demeanor but rather, because it reached a different conclusion based on the facts found by the ALJ.


marteev . urr : 145 : 1

cc: Mitchells' Fish Market (St. Louis, Missouri)

 


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