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


TIMOTHY N JENKINS, Employe

LAMERS BUS LINES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99605754MW


ORDER

Pursuant to authority granted in Wis. Stat. § 108.09(6), the labor and industry review commission hereby sets aside the appeal tribunal decision in the above-captioned matter and remands this matter to a different administrative law judge for a new hearing and decision.

Dated and mailed November 1, 1999
jenkiti.upr : 132 : 6   PC 715

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


MEMORANDUM OPINION

The employe was the appellant at a hearing which was scheduled to determine whether his appeal was late for a reason beyond his control. The employe appeared at the September 1, 1999 hearing by telephone. The ALJ asked the employe if he had the document packet sent to him by the department and the employe indicated he did not. The administrative law judge directed the employe to get the documents. The employe responded "It may take like . . .." The ALJ interrupted the employe stating "You need to go get them. Don't be jawing with me. Go get the documents." The employe did so. After about 19 minutes of no response from the employe the ALJ hung up the phone and issued a decision finding that the employe failed to present evidence that his appeal was late for a reason beyond his control. The employe indicated in his petition that when he was directed to go get the documents he did so. Apparently, the documents were located at his house and so he got in his car and drove to his house.

The ALJ did not ask the employe where the documents were, the ALJ just directed the employe to go get them. The employe did so. Further, it appears the employe started to warn the ALJ it would take awhile but the ALJ interrupted and told the employe to stop "jawing" and get them. While certainly it is preferable that the employe have the document packet that was sent to him, it is not required in order for the hearing to proceed. The employe was following the directive given to him by the ALJ to get the documents. The commission believes the employe should not be denied the right to present testimony on the late appeal issue simply because he followed the instruction given to him by the ALJ.

cc: LAMERS BUS LINES


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