Categories
10. Voluntary Leaving

Ayala v Shaw Systems & Integration Inc. – 10.128

Ayala v Shaw Systems & Integration Inc.
Digest No. 10-128
Section 421.28

Cite as: Ayala v Shaw Systems & Integration Inc., unpublished opinion of the Michigan Unemployment Insurance Appeals Commission, issued December 30, 2019 (Docket No.: 19-014484-259989W).

Court: UIAC
Appeal pending: No
Claimant: Bethany A. Ayala
Employer: Shaw Systems & Integration Inc.
Date of decision: December 30, 2019

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HOLDING: The Unemployment Insurance Appeals Commission (the “Commission”) held that under Section 421.29(1)(a), the employer’s failure to address the Claimant’s well-founded health and safety concerns, such as the existence of asbestos and a lack of safety measures, are good cause attributable to the employer to quit.

FACTS: The Claimant began her project at a hospital for the employer in December of 2018. At that time, her employer told her that all the asbestos had previously been removed from the site. To the contrary, after returning to the site for a different project, Claimant discovered that an asbestos abatement crew was removing asbestos from the area and realized that there was asbestos throughout the hospital on March 11, 2019. The employer never offered the Claimant safety equipment and did not test the air or materials before assigning employees to work in an area. Ultimately, Claimant did not feel comfortable with the situation and did not return to work.

DECISION: The Commission reversed the ALJ’s decision and found that the Claimant is not disqualified for benefits under the voluntary leaving provision of the Act, Section 421.29(1)(a). The Commission affirmed the ALJ’s decision order denying rehearing of the case, as there has been no abuse of discretion.

RATIONALE: The employer has the burden of proof to establish that the Claimant was disqualified under the Act. Ackerberg v Grant Community Hospital, 138 Mich App 295 (1984). Good cause exists when the circumstance which prompted the Claimant’s leaving would have caused a reasonable, average, and otherwise qualified employee to leave. Carswell v Share House, Inc., 151 Mich App 392 (1986). In this case, the employer failed to establish that the Claimant was disqualified. Even if the Claimant’s separation from work could be characterized as a quit, the Claimant had good cause to leave the employer. She was not given proper notice regarding the risks of exposure to asbestos, and the employer failed to provide safety measures to mitigate the situation, despite relocating her to another worksite. She also discovered during a safety meeting that employees were exposed to asbestos at another work site, which prompted her not to be willing to be sent to another location without being informed as to how employees could be protected from being exposed to asbestos. Therefore, the Claimant is not disqualified.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
12. Misconduct

Roberts v Americhem Sales Corp – 12.134

Roberts v Americhem Sales Corp
Digest No. 12.134
Section 421.29(1)

Cite as: Roberts v American Sales, Corp, Unpublished Opinion of the Kent County Circuit Court of Michigan, Issued April 11, 2003 (Docket No. B-2002-06554-16443).


Court: Circuit Court for the County of Kent
Appeal pending: No
Claimant: John D. Roberts
Employer: American Sales Corporation (“ASC”)
Date of decision: April 11, 2003

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HOLDING: “An individual is disqualified from receiving benefits if he or she: … [w]as discharged for … testing positive on a drug test, …,”only if, should the worker dispute that result, a confirmatory test is administered and is also positive under MCL 421.29(1)(m). A claimant cannot be disqualified from benefits if he or she asked for a second test, and no such test was administered.

FACTS: Claimant worked as a sales representative for Americhem Sales Corporation (“ASC”) from June, 2001, through January 25, 2002. His tenure was troubled. He was warned and disciplined several times for poor job performance, failing to follow instructions, and/or insubordination, and by a letter dated January 14, 2002, he was told by the president of ASC that, because of that “continued pattern of behavior,” he would have to submit to drug and alcohol testing, which he did and had tested positive for cocaine. Shortly after, the employment was terminated. Claimant applied for unemployment benefits. When his application was denied, he appealed. A full evidentiary hearing took place, and the referee issued a decision finding, first, that claimant had been discharged solely because of the drug test, not because of poor job performance or disciplinary problems. The employer had claimed otherwise, but the referee was not persuaded. The referee also found that claimant had demanded a confirmatory drug test. He had testified to such a demand, and the employer’s witnesses did “not recall” whether he had asked for another test. Therefore, because ASC had conceded that no second test had been administered, the referee ruled that MCL 421.29(l)(m) barred disqualifying claimant from benefits. The Board of Review affirmed, finding that “the [r]eferee’s decision is in conformity with the facts as developed at the hearing,” and that he had “properly applied the law to the facts.” ASC appealed claiming that both the referee and the Board of Review erred, because the finding that claimant had not been fired for repeated misconduct “completely ignored the evidence of the series of events leading to [c]laimants discharge.”

DECISION: The court affirmed the decision of the referee and the Board of Review.

RATIONALE: While the notice of termination from ASC’s president referred to claimant’s “pattern of behavior of not following instructions,” it was certainly reasonable to read that notice as stating that pattern merely as the justification for having required claimant to submit to a drug test, not as a statement of reasons for his termination. Under 421.29(1)(m), because it could not reverse the findings that claimant “[w]as discharged for … testing positive on a drug test,” that he asked for a second test, and that no such test was administered, let alone was again positive, the court found that Claimant cannot be disqualified from benefits. Giving to the determination of the Employment Security Appeal Board the deference to which it is entitled and the meaningful review to which the parties are constitutionally entitled, the court found that that determination was amply supported by the record and was also legally correct. The court did not apply Miller v FW Woolworth Co, 359 Mich 342 (1960) to this case, because it was convinced that its superior courts would not so apply Miller, as it would require departing from the ordinary meaning of the terms used in MCL 421.29(I)(b) and (1)(m).

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
10. Voluntary Leaving

Haynes v. Collabera, Inc. – 10.127

Haynes v. Collabera, Inc.
Digest No. 10.127
Section 421.29

Cite as: Haynes v. Collabera, Inc., Unpublished Opinion of the Court of Appeals of Michigan, Issued February 8, 2018 (Docket no. 336372).

Court: Court of Appeals of Michigan
Appeal pending: No
Claimant: Jim Haynes
Employer: Collabera, Inc.
Date of decision: February 8, 2018

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HOLDING: The Circuit Court misapplied the substantial evidence test by holding that there is substantial evidence on the record showing that both IBM and Collabera approved Claimant’s raise despite the ALJ’s conclusion that there was no such evidence. The Circuit Court instead was required to assess whether substantial evidence supported MCAC’s decision. Hodge v. U.S. Security Assoc., Inc., 497 Mich. 189, 193–194; 859 N.W.2d 683 (2015). MCAC’s conclusion that Claimant was not promised a wage was supported by substantial evidence and not contrary to the law, and therefore, the Circuit Court should have affirmed that decision rather than substituting its own judgment.

FACTS: Claimant was aware that he had continuing work under a renewed contract, but he wished for a pay increase as part of that renewed contract. Claimant was told on January 6, 2015, by a representative at IBM that Claimant’s raise was “in the works” and contingent on his contract being extended, but the representative also told Claimant that he was uncertain of when the increase would occur. Rather than waiting on the contract’s approval, or even inquiring as to a date that he could expect the increase, Claimant tendered his letter of resignation on February 2, 2015.

DECISION: The case was reversed and remanded for entry of an order affirming MCAC’s decision that found, in accordance with the law and supported by substantial evidence, that Claimant did not meet his burden of proving he left his employment for good cause attributable to the employer.
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RATIONALE: The Court reasoned that under MCL 421.29(1)(a), two factors must be analyzed: (1) whether an individual left work voluntarily and, if so, (2) whether the voluntary leaving was with good cause attributable to the employer.

The Court reasoned that under the given circumstances, a reasonable, average worker would not give up his employment. McArthur v. Borman’s, Inc., 200 Mich. App. 686, 693; 505 N.W.2d 32 (1993). Claimant resigned after less than one month from when he was told that his rate increase was “in the works.” MCAC found no evidence that a pay raise had been promised; rather, it had been discussed. Accordingly, MCAC properly concluded that Claimant failed to establish good cause, and therefore was not entitled to unemployment benefits.

It is not the function of the Circuit Court “to resolve conflicts in the evidence.” Vanzandt v. State Employees Ret. Sys., 266 Mich. App. 579, 593; 701 N.W.2d 214 (2005). It was not permitted to “set aside findings merely because alternative findings also could have been supported by substantial evidence on the record.” Edw. C. Levy. Co., 293 Mich. App. at 341.

Digest author: Toni Suh, Michigan Law, Class of 2020

Digest updated: January 29, 2021

Categories
07. Eligibility - Able & Available

Kyles v A One Dentures, P.C. – 7.40

Kyles v A One Dentures, P.C.

Digest No. 7.40

Section 421.28

Cite as: Kyles v A One Dentures, P.C., unpublished opinion of the Michigan Compensation Appellate Commission, issued November 21, 2011 (Docket No.: B 2010-28689-RMI-220443W).

Court: MCAC

Appeal pending: No

Claimant: Ginay Y. Josey Kyles

Employer: One Dentures, P.C.

Date of decision: November 21, 2011

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HOLDING: The Michigan Compensation Appellate Commission held that the mere fact that the claimant had an underlying medical condition, COPD, did not make her unable or unavilable to work where the evidence showed that she was laid-off due to lack of work and not her inability to work. However, the claimant was no longer able and available to work once she applied for Social Security disability benefits.

FACTS: The ALJ found the Claimant ineligible for benefits beginning February 4, 2010, based on the record that established the Claimant experienced complications with Chronic Pulmonary Obstructive Disease (COPD). However, the Commission noted that the facts provided that the claimant was seeking work, had transportation, had no care-giving duties, and had had COPD for years. Once claimant filed for Social Security disability benefits, however, the Commission deemed her ineligible for benefits due to lack of ability and availability to work.

DECISION: The Commission modified the ALJ order and found Claimant ineligible for benefits only once she applied for Social Security disability benefits.

RATIONALE: The ALJ’s erred in finding that Claimant was not able and available to perform suitable full-time work of a character which the Claimant was qualified to perform by past experience or training under Section 421.28(1)(c) based soloely on the record of Claimant’s medical condition. The Claimant was laid off due to lack of work—not due to a medical condition. The record offered no basis for the ALJ to find ineligibility as of February 4, 2010. The record, however, did offer such basis as of February 23, 2010, when the claimant applied for Social Security disability benefits.

Furthermore, it was beyond the authority of the ALJ to decide eligibility prospectively, as eligibility questions, like availability and seeking work, must be considered on a week-by-week basis. Therefore, the ALJ could find only that the claimant was ineligible for benefits beginning the week of the administrative hearing, which was held on February 9, 2011.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
13. Refusal of Work

Lasher v Mueller Brass Co – 13.18

Lasher v Mueller Brass Co
Digest No. 13.18
Section 421.29(1)(e)

Cite as: Lasher v. Mueller Brass Co., 62 Mich. App. 171, 233 N.W.2d 513 (1975)


Court: Court of Appeals of Michigan
Appeal pending: No
Claimant: Lasher
Employer: Mueller Brass Co.
Date of decision: June 23, 1975

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HOLDING: The determination of the suitability of the work offered must be made in the context of the time at which the offer was made. The court must first determine whether the new position offered is suitable before determining whether claimant had good cause to reject the position.

FACTS: Appellant claimant challenged an order of the St. Clair County Circuit Court (Michigan), which affirmed an appeal board’s denial of unemployment benefits in favor of appellee employer. The claimant was laid-off from a position as a “center list grinder, set-up service and operator,” which paid $3.54 per hour. During this lay-off, he was offered a job as a janitor, which paid a lower wage. He declined such offer. Later, he wrote a letter to the employer stating that he would take any work available. On such facts, the appeal board deemed the claimant disqualified for unemployment benefits under MCL § 421.29(1)(e) in that he failed without good cause to accept suitable work when offered him. Specifically, on the basis of the written letter, the appeal board deemed the janitorial job offered to be “suitable.” However, the court held that the plain meaning of the statute required the determination as to whether the work offered was suitable to be confined to the time at which the offer was made. As such, reliance on the claimant’s later letter was erroneous. Further, the court iterated that the reversal was not based on a question of fact but on one of law, as the appeal board applied an improper standard in determining suitability. On remand, the appeal board was instructed to first determine if the work offered was suitable and then to determine the question of good cause, if necessary.

DECISION: The court reversed the circuit court’s judgment and remanded the matter to the appeal board.

RATIONALE: The board must necessarily first determine the suitability of the work before addressing the question of whether claimant had good cause. The latter will not be necessary if the new position is not deemed suitable.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
13. Refusal of Work

Chrysler Corp v Devine – 13.04

Chrysler Corp v Devine
Digest No. 13.04
Section 421.29(1)(d)

Cite as: Chrysler Corp. v. De Vine, 92 Mich. App. 555, 285 N.W.2d 373 (1979)

Court: Court of Appeals of Michigan
Appeal pending: No
Claimant: Kevin DeVine
Employer: Chrysler Corporation
Date of decision: September 20, 1979

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HOLDING: Given the good faith of the claimant, actual non-receipt of the notice constituted good cause for his nonattendance under MCLA § 421.29(1)(d).

FACTS: Plaintiff employer appealed the decision by a Michigan circuit court, which affirmed the decision of the Michigan Employment Security Appeal Board that defendant employee was not disqualified from receiving unemployment benefits. Claimant was laid off from employer’s plant and applied for benefits. His unemployment claim form listed his address as that of his parents, although he was living in an apartment away from home. Claimant failed to appear for the requested interview because he did not receive the message regarding the telegram until well after the date of the interview. The employer claimed that the claimant’s non-receipt of actual notice sent by the employer had not constituted good cause for the claimant to fail to report to an interview.

DECISION: The court affirmed the circuit court’s judgment.

RATIONALE: In order for good cause to be present for the failure to attend, the reason must be substantial, significant, and reasonable. See Keith v Chrysler Corp, 390 Mich 458, 475; 213 NW2d 147 (1973). The employer’s claim of an agency theory that reasonable notice to the mother constituted notice to the employee was rejected because the court determined that the Legislature did not intend general principles of agency to apply to the case at bar. The court emphasized the employee’s good faith in the matter, because he was at all times ready and willing to go back to work. Therefore, actual non-receipt of the notice constituted good cause for his nonattendance of the offered interview.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
13. Refusal of Work

Gilliam v. Chrysler Corp. – 13.03

Gilliam v. Chrysler Corp.
Digest No. 13.03
Section 421.29(1)(d) & 421.29(6)

Cite as: Gilliam v. Chrysler Corp., 72 Mich. App. 538, 250 N.W.2d 123 (1976)
Court: Court of Appeals of Michigan
Appeal pending: No
Claimants: James Gilliam and William Lake
Employer: Chrysler Corporation
Date of decision: December 2, 1976

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HOLDING: In determining suitability of a work, the distance factor should be considered based not solely on mileage, but also the statutory factors of each individual case, such as the age and health of the employee, the hours of travel, traffic conditions, the availability and reliability of transportation, the prospects for securing local work, and other factors under MCLA § 421.29(6).

FACTS: Defendant employer appealed a judgment of the Monroe County Circuit Court, which found that plaintiff employees were eligible for unemployment benefits and reversed the decisions of the Employment Security Appeal Board that had denied benefits to each employee. Both employees had been laid off and were offered interviews to work at plants located approximately 40 miles from their homes. One employee turned around before reaching the interview because it was too far of a distance. The other employee refused the offer of employment because his vehicle was not apt for the commute. The employees would also have lost their recall rights to return to local work at the plants near their residences. The Appeal Board held that the employees did not establish good cause to refuse the “available suitable work” under § 421.29 of the Michigan Employment Security Act (MESA), and thus, were ineligible for continued unemployment benefits. The circuit court reversed.

DECISION: The court affirmed the circuit court’s judgment.

RATIONALE: Although it may be that loss of recall rights is not good cause by itself for refusing suitable work, Losada v Chrysler Corp, 24 Mich App 656; 180 NW2d 844 (1970), it is, nevertheless, a fact which, like many other facts, may have bearing upon one or more of the § 29(6) factors for determining suitability in the first instance. Offered employment which is otherwise suitable may be unsuitable if it jeopardizes good prospects for recall to local work in an individual’s customary occupation. Furthermore, loss of recall may have a bearing on the distance factor, because the harshness of an individual travel for work depends on whether it is a temporary or permanent requirement.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
13. Refusal of Work

Dueweke v Morang Drive Greenhouses – 13.02

Dueweke v Morang Drive Greenhouses
Digest No. 13.02
Section 421.29(1)(a), 421.29(1)(e), & 421.29(6)

Cite as: Dueweke v. Morang Drive Greenhouses, 411 Mich. 670, 311 N.W.2d 712 (1981)
Court: Supreme Court of Michigan
Appeal pending: No
Claimant: Eric Dueweke
Employer: Morang Drive Greenhouses
Date of decision: November 2, 1981.

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HOLDING: The court held that an offer of work involving conditions that were illegal rendered the work unsuitable. The court held that once the employee was disqualified and then re-qualified, the employee was not automatically disqualified for refusing to return to the same work.


FACTS: The employee quit his job with the employer and then filed a claim for unemployment benefits. The Michigan Employment Security Commission (“MESC”) denied the claim and imposed a disqualification under § 421.29 of the Michigan Employment Security Act (“MESA”), finding that the employee left his job without good cause. The employee served a six-week requalification period and then refiled his claim for benefits. When the employee returned to the employer, the employee was offered a job, but the employee refused contending that the overtime payment procedure violated the Federal Fair Labor Standards Act, 29 U.S.C.S. § 207(a)(1).

Plaintiff employee appealed a decision from the Michigan appellate court reversing a decision awarding him unemployment benefits on the grounds that he was disqualified under § 29(1)(e) of the MESA. The employee’s action was initiated against defendant, MESC.

DECISION: The court reversed the decision denying the employee’s claim for unemployment benefits and remanded for further proceedings.

RATIONALE: The court found that MESC failed to consider whether the offered job was suitable under § 29(6) of the MESA.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
13. Refusal of Work

Keith v. Chrysler Corp. – 13.01

Keith v. Chrysler Corp.
Digest No. 13.01
Section 421.29(1)

Cite as: Keith v. Chrysler Corp, 390 Mich. 458, 213 N.W.2d 147 (1973)
Court: Supreme Court of Michigan
Appeal pending: No
Claimant: John Keith
Employer: Chrysler Corporation
Date of decision: December 18, 1973

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HOLDING: On appeal, the court held that the employee was provided a reasonable time to report for the interview because the employer waited two and one-half months to file a notice of possible disqualification.

FACTS: The employee was hired by defendant employer to work at a certain location. He was laid off for lack of available work. The employer notified the employee of an interview for work at a different location, but the employee did not go. The appeal board disqualified the employee from receiving unemployment benefits for failure to comply with the requirements of § 29(1)(d) of the MESA, by failing, without good cause, to report to his employer for the interview. The appeals court upheld the appeal board’s decision.

DECISION: The court affirmed the appeals court’s decision to uphold the appeal board’s denial of unemployment benefits to the employee.
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RATIONALE: The employee showed no good cause for his failure where the interview was a reasonable distance from his residence and the time was flexible. His dislike for the potential work and desire to maintain status at the first plant did not constitute good cause.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

Categories
12. Misconduct

Goblembiewski v. Complete Auto Transit – 12.67

Goblembiewski v. Complete Auto Transit
Digest No. 12.67
Section 421.29(1)(b)

Cite as: Goblembiewski v. Complete Auto Transit, Unpublished Opinion of the Genesee County Circuit Court, Issued April 2, 1990 (Docket no. 89-1046 AE).

Court: Genesee County Circuit Court
Appeal pending: No
Claimant: Arthur Golembiewski
Employer: Complete Auto Transit
Date of decision: April 2, 1990


View/download the full decision

HOLDING: Mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertence or ordinary negligence and isolated incidents of good faith errors in judgment or discretion are not to be deemed misconduct. The dollar amount of damage suffered by the employer does not affect whether an employee has engaged in misconduct.

FACTS: The claimant worked for the employer as an over-the-road driver, delivering automobiles to dealerships, from 1975 through April 19, 1988. When the claimant was making a delivery run to Holly, Michigan, he was involved in an accident when his truck struck an overpass resulting in damage in excess of sixteen thousand dollars. The claimant alleged that he negligently and not deliberately made a mistake of not lowering the ramps on his truck because he was distracted by a malfunctioning jump pin, which he spent approximately 30 minutes trying to repair. The claimant filed for unemployment benefits for the period from April 19, 1988, through May 14, 1988. The Referee held the claimant not disqualified for benefits pursuant to the provisions of MCL 421.29(1)(a) of the Michigan Employment Security Act. The employer appealed and the Employment Security Board of Review reversed the Referee’s decision.


DECISION: The Genesee County Circuit Court reversed the decision of the Employment Security Board of Review and held that the claimant was not disqualified for benefits.


RATIONALE: The Court reasoned that under Karr* case, the Supreme Court held that “conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such a degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.” The case also said that “[o]n the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertence or ordinary negligence and isolated incidents of good faith errors in judgment or discretion are not to be deemed misconduct within the meaning of the statute.” In this case, the claimant clearly did not intentionally lower the ramps on his truck and get distracted. In addition, he was distracted trying to fix his employer’s equipment—the jump pin. The significant amount of the damage the employer suffered from the accident should not affect the legal standard required for misconduct.

Digest author: Toni Suh, Michigan Law, Class of 2020
Digest updated: January 29, 2021

*This case was not quoted in this opinion and the citation could not be found. It appears to be a quote from Carter v. Employment Security Comm., 364 Mich. 538 (1961).