Butler v. MWS Enterprises, Inc.

199 S.W.3d 912 (2006)

Donna BUTLER, Claimant/Appellant, v. M.W.S. ENTERPRISES, INC., and Division of Employment Security, Respondent.

No. ED 88353.

Missouri Court of Appeals, Eastern District, Division Five.

August 29, 2006.

*913 Donna Butler, St. Louis, MO, pro se.

M.W.S. Enterprises, INC., St. Louis, pro se.

BOOKER T. SHAW, Chief Judge.

Claimant Donna Butler appeals the decision of the Labor and Industrial Relations Commission (Commission) dismissing her application for review in her unemployment case. We dismiss the appeal.

Claimant filed a claim for unemployment benefits after losing her job with M.S.W. Enterprises, Inc. A deputy determined that she was not eligible for benefits because her discharge was due to misconduct connected with her work. Claimant sought review by the Appeals Tribunal, which affirmed the deputy's determination. Claimant then filed an application for review with the Commission, which dismissed the application as untimely. Claimant has now appealed to this Court. The Division of Employment Security has filed a motion to dismiss the appeal, contending this Court has no jurisdiction. Claimant has not filed a response to the motion.

In unemployment matters, an aggrieved party has thirty (30) days from the mailing of the Appeals Tribunal decision to file an application for review with the Commission. Section 288.200.1, RSMo 2000. Here, the Appeals Tribunal mailed its decision to Claimant on May 9, 2006. Therefore, Claimant's application for review to the Commission was due on June 8, 2006. Section 288.200. Claimant's application for review was received by the Division by fax on June 9, 2006. Her application for review as untimely.

The unemployment statutes provide no exceptions to the thirty-day requirement. Failure to file a timely application for review divests the Commission of jurisdiction and it can only dismiss the application for review. Brown v. MOCAP, Inc., 105 S.W.3d 854, 855 (Mo.App. E.D. 2003). In addition, this Court's jurisdiction is derived from that of the Commission, and if it does not have jurisdiction, then neither do we. Id.; Stogsdill v. BJC Healthcare, 185 S.W.3d 807, 808 (Mo.App. E.D.2006). Our only recourse is to dismiss the appeal. Phillips v. Clean-Tech, 34 S.W.3d 854, 855 (Mo.App. E.D.2000).

*914 The Division's motion to dismiss is granted. The appeal is dismissed for lack of jurisdiction.

GLENN A. NORTON, and PATRICIA L. COHEN, JJ. Concur.