12. Misconduct

Gallagher v Montcalm County – 12.153

Gallagher v Montcalm County
Digest no. 12.153

Section 29(1)(b)

Cite as: Gallagher v Montcalm Co, unpublished opinion of the Court of Appeals, issued August 17, 1999 (Docket No. 203429).

Appeal pending: No
Claimant: Dale Gallagher
Employer: Montcalm County
Docket no.: 96-000348-AE
Date of decision: August 17, 1999

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COURT OF APPEALS HOLDING: A claimant’s indirect and belated efforts to notify his employer of his absences and failure to contact his employer thereafter, when occurring immediately following other disciplinary action, may constitute disqualifying misconduct.

FACTS: Claimant was employed as a building inspector for Employer. On December 3, 1993, Claimant received a 3-day suspension for falsification of time cards, failure to return to work after breaks, and other things. On his first day back after this suspension, Claimant suffered from a spasmodic colon causing him to defecate uncontrollably while on his way to work. After cleaning himself, he stopped into work only briefly before leaving without communicating with anyone. Claimant’s daughter-in-law contacted his supervisor on December 9 about Claimant’s illness, and Claimant mailed in his time card on December 10 with the word “sick” written on it. Claimant never personally contacted his supervisor regarding his absence; Claimant did not provide medical verification, nor did his doctor ever tell him that he could not return to work. Claimant was sent a letter on December 17 informing him that his failure to return to work, make personal contact, or provide written clarification of his absence is considered voluntary termination of his employment.

On appeal of Claimant’s initial determination of eligibility, the ALJ determined that failure to keep Employer adequately informed as to why he was absent constituted disqualifying misconduct. The Board of Review affirmed the ALJ decision on different grounds, finding misconduct instead in failure for Claimant to provide medical verification of the reason for his absence. On appeal, the Circuit Court disagreed with the Board of Review’s reasoning, but affirmed the decision as not contrary to law, agreeing with the ALJ that misconduct stemmed from Claimant’s failure to keep the employer adequately informed as to the reason for his absence.

DECISION: The Circuit Court decision is affirmed, Claimant is disqualified from benefits due to misconduct.

RATIONALE: Generally, tardiness or absence which results from circumstances outside the claimant’s control cannot be considered to be misconduct, which is willful or wanton disregard of the employer’s interest. However, here, the evidence shows that Claimant’s doctor did not tell him that he could not return to work. Also, when Claimant stopped at Employer’s building the same day of his medical condition, he did not bother to appraise anyone of his situation or leave any form of communication, nor did he personally contact Employer that day or any day subsequent. “An employer . . . has a right to expect that its employees will provide appropriate notification of their reasons for an absence from work. Coming on the heels of a three-day disciplinary suspension,” Claimant’s actions constitute an intentional and substantial disregard for his employer’s interests. The Circuit Court did not clearly err by affirming the Board of Review’s decision.

Digest Author: Jack Battaglia
Digest Updated: 8/14