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


PATRICK O RYAN, Employe

DEAN FOODS VEGETABLE CO, Employer

UNEMPLOYMENT COMPENSATION DECISION
Hearing No. 97000882JV


On November 7, 1996, the Department of Workforce Development issued an initial determination which held that the employe was discharged for misconduct connected with his employment. The department received his Request for Hearing on February 6, 1997, and scheduled hearing for March 13, 1997 on the issues of the timeliness of the employe's request for hearing and (provisionally) the merits. On March 14, 1997, a department administrative law judge issued an appeal tribunal decision dismissing the employe's request for hearing. The employe timely petitioned for commission review of the adverse appeal tribunal decision, and the matter is not ready for disposition.

Based upon the applicable law and the records and other evidence in the case, the commission issues the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The department's initial determination dated November 7, 1996 was mailed to the employe at his last known address. He received it on November 18, 1996. The last day for a timely appeal was November 21, 1996. The employe contended that he wrote his appeal to the Madison Hearing Office and mailed it at the Delavan post office on November 19, 1996. However the department did not receive the appeal. After not receiving an acknowledgement he contacted the hearing office on January 27, 1997, was told the appeal was not received, and filed a second appeal, dated January 31, 1997, on February 6, 1997.

Section 108.09 (4) (c) of the statutes provides, in relevant part, as follows:

108.09 (4)(c) Late Appeal. If a party files an appeal which is not timely, the department may schedule a hearing concerning the issue of whether the party's failure to timely file the appeal was for a reason beyond the party's control. . . . If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file the appeal was not for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding and dismissing the appeal. If, after hearing testimony, the appeal tribunal finds that the party's failure to timely file the appeal was for a reason beyond the party's control, the appeal tribunal shall issue a decision containing this finding. The same or another appeal tribunal established by the department for this purpose shall then issue a decision under sub. (3)(b) after conducting a hearing concerning any matter in the determination.

The employe filed the appeal late because his first appeal was mailed to, but not delivered to or received by, the department. For this reason, the employe's appeal was late for a reason beyond his control, since he had no control over it once he mailed it. The commission therefore finds that the employe failed to file a timely request for hearing, and that such failure was for a reason beyond his control, within the meaning of Wis. Stat. § 108.09 (4)(c) and Wis. Admin. Code ch. DWD 140.

DECISION

The appeal tribunal decision is reversed. Accordingly, the matter is remanded to the administrative law judge for a decision on the merits.

Dated and mailed September 11, 1997
ryanpat.urr : 105 : 1  PC 711

/s/ Pamela I. Anderson, Chairman

/s/ David B. Falstad, Commissioner

NOTE: The commission did not confer with the administrative law judge before determining to reverse the appeal tribunal decision in this case. Such conferral is required where the commission is considering reversal of an appeal tribunal decision on the basis of a different credibility resolution from that of the administrative law judge. Such is not the case here, since the commission has adopted the factual findings made by the administrative law judge. The commission simply differs as to the legal conclusion those facts require.


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