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


JANIECE DUDLEY, Employe

FAMILY DOLLAR STORES OF WISCONSIN INC NO 882, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605078MW


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

An initial determination adverse to the employer was issued on June 30, 1999. The last day to file a timely appeal was July 14. The employer's hearing request postmarked July 15 and received on July 16.

On August 4, 1999, a hearing was held with respect to the timeliness of the employer's request for hearing. At the procedural hearing the employer's agent testified that it received the initial determination on July 9, and that the appeal letter was prepared and mailed on July 14, the date on which it received confirmation from the employer that it wished to appeal.

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

Wis. Stat. § 108.09(2r) provides that a party may request a hearing as to any matter in an initial determination if such request is made in accordance with procedures 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 the party, whichever occurs first. An untimely hearing request will be dismissed unless the party filing the request shows that the reason for having failed to file the request timely was beyond the party's control. Wis. Stat. § 108.09(4)(c).

In the instant case, the appeal tribunal found that the employer's appeal was untimely and not for a reason beyond its control. The appeal tribunal reasoned that, although the appeal was prepared and placed into the postal stream on July 14, the employer's agent could have received confirmation from the employer prior to that date and could easily have filed an appeal in a timely manner by being more diligent. The commission disagrees with this analysis. The deadline for filing a timely hearing request was July 14, 1999, and the employer's agent was permitted to mail the appeal on that date, regardless of whether it could have done so earlier. If the employer's agent placed the appeal into the postal stream on July 14, then its failure to receive a timely postmark is a matter beyond its control.

The commission, therefore, finds that the employer failed to file a timely hearing request but that its failure to do so was for a reason beyond its control, within the meaning of Wis. Stat. § 108.09(4) and Wis. Admin. Code § DWD 140.

DECISION

The decision of the administrative law judge is reversed. Accordingly, the employer's appeal is not dismissed. The commission remands this matter to the hearing office for a hearing and decision on the merits of the employer's appeal.

Dated and mailed September 23, 1999
dudleja.urr : 164 : 1 PC 711

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: The commission did not confer with the appeal tribunal regarding witness credibility and demeanor. The commission's reversal is not based upon any differing credibility assessment, but is as a matter of law when considering the same set of facts as that found by the appeal tribunal.


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