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


VICTORIANA JASSO, Employe

DENNYS, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 99606136RC


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 employe.

Wis. 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 . . ."

Wis. Admin. Code § LIRC 1.02 provides, in relevant part, as follows:

"All petitions for commission review shall be received, or, in unemployment compensation, received or postmarked, within 21 days from the date of mailing of the administrative law judge's findings and decision or order, except as provided under this section. `Received' means physical receipt. A mailed petition postmarked on or prior to the last day of an appeal period, but received on a subsequent day is not a timely appeal, except in unemployment compensation. All petitions shall be in writing. . ."

Wis. Admin. Code § LIRC 2.01 (1) provides, in relevant part, as follows:

"A petition for commission review of the findings or order of an appeal tribunal decision under s. 108.09 or 108.10, Stats., shall be postmarked or received within 21 days from the date of mailing of the decision to the parties."

The administrative law judge's decision having been dated and mailed on September 24, 1999, the last day on which a timely petition for review could have been filed was October 15, 1999. The employe filed her petition for review by facsimile transmission October 18, 1999.

The employe asserts that she filed a timely petition, by facsimile transmission, on September 25 or 26. The commission cannot accept this assertion at this point, however, because the employe has provided no supporting evidence that she in fact properly sent by fax a timely appeal. The Department of Workforce Development did not receive the appeal the employe alleges she sent in September, so the presumption is that the employe did not successfully send the appeal. The commission will reconsider the matter if, within 21 days of the date of this decision, the employe provides documentary evidence, such as a confirmation note from the fax machine or a copy of the log of the fax machine showing the transmission to the department, to the commission at the above-listed address.

The commission therefore finds that the petition for commission review was not timely and that the petitioner has not shown probable good cause that the reason for having failed to file the petition timely was beyond the petitioner's control, within the meaning of Wis. Stat. § 108.09 (6)(a).

DECISION

The petition for review is dismissed.

Dated and mailed November 26, 1999
jassovi.upr : 105 : 1  PC 731

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

cc: DENNYS


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