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


BRADLEY S HINTZE, Employe

CAREER STAFFING SERVICES INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 00000202BO


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 employer.

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 February 4, 2000, the last day on which a timely petition for review could have been filed was February 25, 2000. The employer filed its petition for review on May 8, 2000.

At the first hearing in this case, on January 31, 2000, the employer's sole evidence of alleged misconduct was a memorandum from the employer's president to a Department of Workforce Development representative, concerning the employe's alleged excessive absenteeism and intoxication while at work. Parties are instructed that they must provide firsthand evidence of matters in dispute; the administrative law judge properly did not find misconduct on this ground, because of a failure of competent proof by the employer. That aspect of the case is at an end.

The more significant aspect of the case is the employer's allegations of fraud and embezzlement against the employe. To this point, the employer has failed to prove the allegations, and so the commission is dismissing the petition for review at this time. At this point in time, absent any competent evidence of the alleged fraud and embezzlement, there is no basis for the employer's late petition for review. As indicated below in the accompanying note, though, the employer is not foreclosed by this decision from petitioning the commission at a date in the future, under the conditions specified below.

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 August 21, 2000
hintzbr2.upr : 105 : 3   MC 665.01  PC 740

/s/ David B. Falstad, Chairman

/s/ Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner


NOTE: At the January 31, 2000 hearing in this case, the administrative law judge informed the employer that, if the employe were convicted in criminal proceedings of the allegations made by the employer, and the employer established that the alleged fraud and embezzlement were reasons for discharge of the employe, then the employer could petition the commission within two years on the ground that the conviction would constitute newly discovered evidence of the employe's wrongdoing. It should be clear that there are two aspects to this case: proof of the employe's alleged fraud and embezzlement, and the point in time at which the employer learned of the alleged fraud and embezzlement. The commission will take the second matter first.

Wisconsin statute § 108.04 (5) requires, for a disqualification for misconduct, that an employe's work be terminated by the employer, for misconduct connected with the employe's work. As a matter of definition, therefore, the allegations must be a reason why the employe was discharged. There can be no discharge for misconduct, where the allegations concern matters not discovered by the employer until after the discharge. This was the administrative law judge's point in instructing the employer that it would have to show that the alleged fraud and embezzlement were a reason the employer discharged the employe. It still remains for the employer, if it chooses to bring further proceedings, to establish that the alleged fraud and embezzlement were a reason for its discharge of the employe.

The second matter is easier. The employer has alleged that it could not prove the allegations of fraud and embezzlement, because the district attorney was in control of the case, that the district attorney had the employer's evidence and had instructed the employer not to discuss the matter of the employe's alleged fraud and embezzlement with anyone until the district attorney had filed charges against the employe. The commission has regularly held that it is unfair to penalize an employer in such circumstances, for a late appeal or failure of proof that is due to such constraints imposed by the criminal justice system. It is for this reason that the employer will be able to petition the commission for reconsideration of this case, upon the conclusion of criminal proceedings against the employe or release by the district attorney of the employer's evidence of alleged wrongdoing by the employe.

The employer still must establish, though, that the alleged fraud and embezzlement were a reason for the discharge. The commission notes, finally, that it may only reopen proceedings within two years of the date of appeal tribunal or commission decisions, pursuant to Wis. Stat. § 108.09 (6).


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