Categories
12. Misconduct

Washington v Amway Grand Plaza – 12.10

Washington v Amway Grand Plaza
Digest no. 12.10

Section 29(1)(b)

Cite as: Washington v Amway Grand Plaza, 135 Mich App 652 (1984).

Appeal pending: No
Court: Michigan Court of Appeals
Date of decision: May 21, 1984

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COURT OF APPEALS HOLDING: “As a matter of law, absences or tardiness resulting from events beyond the employee’s control or which are otherwise with good cause cannot be considered conduct in wilful or wanton disregard of the employer’s interests.”

FACTS: The claimant was fired from her job for being late or absent on several occasions … In the nine months of claimant’s employment, she received five warnings regarding lateness or absenteeism, including three “final” warnings on May 5, May 16, and June 7, 1982. Other warnings were issued on December 21, 1981, and May 15, 1982. Tardiness and absenteeism were also brought to claimant’s attention in an employee evaluation in April, 1982. Dale Hamilton, assistant chief steward for Amway, testified that the reasons claimant offered for lateness were an inadequate alarm clock, marital problems and that she overslept. Claimant testified that many times the weather was the reason she could not get to work.

DECISION: “The case is remanded to the Board of Review to determine whether statutory misconduct was present after considering claimant’s explanation and excuses.”

RATIONALE: “The Referee and the Board did not consider claimant’s explanations and excuses for her absences and tardiness. It appears that the Referee and Board took the position that since claimant was discharged for violation of Amway’s rules and regulations concerning attendance, she was necessarily disqualified under the statute.

“The case is remanded to the Board of Review to determine whether statutory misconduct was present … In making this determination, the Board should specifically consider claimant’s explanations and excuses for her absences and tardiness which resulted in the discharge. Statutory misconduct cannot be made out … if the Board factually determines that the absences and tardiness which resulted in the discharge were with good cause or for reasons otherwise beyond claimant’s control. On remand, the burden of proving misconduct remains on the employer.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/90

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12. Misconduct

Syntax Corp v Armbruster – 12.05

Syntax Corp v Armbruster
Digest no. 12.05

Section 29(1)(b)

Cite as: Syntax Corp v Armbruster, unpublished opinion of the Court of Appeals, issued November 1, 1983 (Docket No. 66425).

Appeal pending: No
Claimant: Lynn Armbruster
Employer: Syntax Corporation
Docket no.: B79 20775 71380
Date of decision: November 1, 1983

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COURT OF APPEALS HOLDING: The evidence does not reach the level required to meet the “misconduct” standard.

FACTS: A Referee found that claimant was discharged for misconduct, apparently believing she could not perform at the level she said she could in the job interview. On appeal, the Board of Review reversed, holding that employer had not met its burden of establishing that claimant so overstated her secretarial abilities during the job interview as to be disqualified for misconduct under the statute. The Circuit Court affirmed the decision of the Board of Review.

DECISION: The claimant is not disqualified under Section 29(1)(b) of the Act.

RATIONALE: The Court adopted the language of Dunlap v MESC, 99 Mich App 400, 403; 297 NW2d 682 (1980), Lv den 411 Mich 904 (1981) which says:

“In this case, the act upon which the conclusion of misconduct was based occurred prior to employment. Every minor misstatement on an employment application does not constitute statutory misconduct of a level to justify denial of payment of unemployment compensation benefits.”

In the within case, as in the cited cases, the evidence does not reach the level required to meet the “misconduct” standard. On the contrary, during a five hour interview, plaintiff-employer did little or nothing to test whether defendant Armbruster met the standard that plaintiff now asserts must be met. Whether or not her skills were adequate for the job, there is no evidence that defendant misrepresented them to the degree equivalent to misconduct under the statute.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/90

Categories
12. Misconduct

Countryside Care Center v Chenault – 12.23

Countryside Care Center v Chenault
Digest no. 12.23

Section 29(1)(b)

Cite as: Countryside Care Ctr v Chenault, unpublished opinion of the Jackson Circuit Court, issued April 7, 1983 (Docket No. 83-32410 AE).

Appeal pending: No
Claimant: Marjorie A. Chenault
Employer: Countryside Care Center
Docket no.: B82 05347 84134
Date of decision: April 7, 1983

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CIRCUIT COURT HOLDING: A dissenting opinion from the Board of Review was adopted … ” … sleeping … (w)as, of itself, of a sufficiently serious nature to justify the discharge for misconduct”.

FACTS: The claimant, who worked as a nurses’ aide, was fired for sleeping while on duty. The employer operated a nursing home for the elderly. Employer previously warned the employees that they were not to sleep at work. This was a verbal directive only and was not in writing.

DECISION: The claimant is disqualified under Section 29(1)(b) of the Act.

RATIONALE: The Court adopted the dissenting opinion of a Board of Review member who held:

“Despite claimant’s denial, the record established that the claimant was, in fact, sleeping, and this conduct, without regard to the fact that other employees were also sleeping, was, of itself, of a sufficiently serious nature to justify the imposition of the disqualification provided by the discharge for misconduct section of the Act.”

“Clearly, the claimant’s conduct in this case exhibited the kind of disregard of the employee’s duties and obligations to his employer which are considered misconduct under the definition of Carter v Employment Security Commission, 364 Mich 538 (1961), adopting the definition of misconduct set forth in Boynton Cab Co v Neubeck, 237 Wisc 249 (1941).”

Digest Author: Board of Review (original digest here)
Digest Updated: 
11/90

Categories
12. Misconduct

Stephens v Howmet Turbine Components – 12.24

Stephens v Howmet Turbine Components
Digest no. 12.24

Section 29(1)(b)

Cite as: Stephens v Howmet Turbine Components, unpublished opinion of the Muskegon Circuit Court, issued April 7, 1983 (Docket No. 82-17057 AE).

Appeal pending: No
Claimant: Annie J. Stephens
Employer: Howmet Turbine Components
Docket no.: B82 03101 82966
Date of decision: April 7, 1983

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CIRCUIT COURT HOLDING: Claimant wilfully disregarded the interests of her employer by failing to appear at work for three consecutive work days, and by failing to properly notify her employer.

FACTS: Claimant was terminated for being absent three consecutive days. During these three days claimant failed to provide proper notification to her employer. The current Collective Bargaining Agreement, which establishes company policy, explicitly directs employees to contact the personnel department by telephone or in person and give notice of intended absence.

DECISION: Claimant is disqualified under Section 29(1)(b) of the Act.

RATIONALE: The Court adopted the definition of misconduct articulated in Carter v Employment Security Commission, 364 Mich 538, 541 (1961).

A harsh ruling on the meaning of misconduct was handed down in Wickey v Employment Security Commission, 369 Mich 487 (1963). There, a seaman aboard a ship went ashore to attend a movie and failed to return to his ship before departure. This was his first offense but the Court stated that “an employer has a right to expect his employees to return on time.” Thus, the Court found misconduct for one day may be sufficient to deny an employee benefits. The underlying principles of the Carter and Wickey kind of cases place a duty on an employee to present himself on a daily basis, or to inform his employer when he cannot do so. Violations of that duty demonstrate disregard both of employer’s interests and of the employee’s duties.

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Categories
12. Misconduct

Saugatuck Village v Bosma – 12.22

Saugatuck Village v Bosma
Digest no. 12.22

Section 29(1)(b)

Cite as: Saugatuck Village v Bosma, unpublished opinion of the Allegan Circuit Court, issued March 16, 1983 (Docket No. 82-4417 AE).

Appeal pending: No
Claimant: Thomas Bosma
Employer: Saugatuck Village
Docket no.: B81 00101 78040
Date of decision: March 16, 1983

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CIRCUIT COURT HOLDING: Where an employee is discharged for activities that occur while on medical leave, the separation is a non disqualifying discharge.

FACTS: The claimant was employed as a police officer. “While on medical leave, he was arrested and charged with two counts of assault and battery along with one count of driving under the influence of liquor.” Following his convictions of assault and battery and of careless driving, the claimant’s employment was terminated.

DECISION: The claimant is not disqualified for misconduct.

RATIONALE: “[C]ourts have consistently interpreted … disqualifying misconduct as requiring that the misconduct be connected to the employee’s work duties. Thus, in Reed v Employment Security Commission, 364 Mich 395 (1961), the Court determined that an employee discharged for violating a company rule which required discharge if the company were served with a second writ of garnishment was not disqualified from receiving unemployment benefits. The Court reasoned that, to be disqualifying under the Act, the ‘rule and its violation must have some reasonable application in relation to the employee’s task’, Id. at 397.

“[T]his Court agrees that the Claimant’s activities were below the standards which the employer had a right to expect from the employee, and that his discharge was justified. However . . . the activities occurred (sic) while Claimant was on a medical leave, not while he was on duty or even eligible for such duty. Under the facts presented, this Court is unable to conclude that the … decision that Claimant was not disqualified from receiving benefits for his ‘misconduct’ was contrary to law.”

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Categories
12. Misconduct

Banks v Ford Motor Co – 12.06

Banks v Ford Motor Co
Digest no. 12.06

Section 29(1)(b)

Cite as: Banks v Ford Motor Co, 123 Mich App 250 (1983).

Appeal pending: No
Claimant: John L. Banks
Employer: Ford Motor Company
Docket no.: B79 06738 67680
Date of decision: February 10, 1983

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COURT OF APPEALS HOLDING: “Disqualification may be based on an assault connected with the claimant’s work, even though the reasons for the assault are not related to the work.”

FACTS: “At approximately 10:45 p.m. on January 22, 1979, the claimant had entered the plant parking lot prior to beginning work on his shift. Another employee was moving his car from one space in the lot to another prior to finishing work on his shift. The claimant’s vehicle was struck by the vehicle driven by the other employee. The claimant and the other employee each got out of his car. While the other employee apologized, claimant opened a penknife and struck him with it in the neck and chest.”

DECISION: The claimant is disqualified for assault and battery.

RATIONALE: “(T)he assault occurred on company property. The assailant and his victim were both employees of Ford and were both at the plant to work. Under the Worker’s Disability Compensation Act of 1969, the injuries to the victim of the claimant’s assault arose out of and in the course of employment. MCL 418.301 (1)(3); MSA 17.237 (301)(1)(3). See Queen v General Motors Corp, 38 Mich App 630 (1972); Brady v Clark Equipment Co, 72 Mich App 274 (1976). The injury to, and potential for injury to, the employer’s interests is evident in the present case.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/90

Categories
12. Misconduct

MESC v Borucki – 12.17

MESC v Borucki
Digest no. 12.17

Section 29(1)(b)

Cite as: MESC v Borucki, unpublished opinion of the Wayne Circuit Court, issued June 30, 1982 (Docket No. 81-140409 AE).

Appeal pending: No
Claimant: Arthur R. Borucki
Employer: North Detroit General Hospital
Docket no.: B78 11915 65930
Date of decision: June 30, 1982

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CIRCUIT COURT HOLDING: Where an individual is involved in an assault and battery and is not the aggressor, the separation is not disqualifying.

FACTS: “The claimant had been verbally harassed and abused by a fellow employee in a confrontation at the time-card rack as claimant was preparing to leave work and the fellow employee was reporting to work … During the course of the confrontation, the fellow employee called the claimant an obscene name. The unrebutted testimony of a witness was that the fellow employee was abusive to the claimant because of the report claimant had written. In addition, the fellow employee, at the moment he spoke the abusive words to claimant, put up his hands in an aggressive gesture. The unrebutted testimony of the witness was that the fellow employee was the aggressor.”

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “Where as here, the putative basis for disqualification is the misconduct of the employee, the burden of proof lies with the employer or charging party, Fresta v Miller, 7 Mich App 58 (1967) … The only res gestae witness to the above described event appearing at the hearing was a fellow employee, Beck. Beck testified that Bradley verbally abused the claimant to provoke an incident and called the claimant a vile name … The witness stated that Bradley assumed an aggressive posture throughout and that there was nothing defensive about his conduct.”

“Mindful of the remedial purposes of the Act and further mindful of the burden of proof in such proceedings, see for example, Diepenhorst v General Electric, 29 Mich App 651, 653 (1971) the determination of the Board of Review ‘that claimant is not disqualified for assault and battery’ is affirmed.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 6/91

Categories
12. Misconduct

Streeter v River Rouge Board of Education – 12.21

Streeter v River Rouge Board of Education
Digest no. 12.21

Section 29(1)(b)

Cite as: Streeter v River Rouge Board of Ed, unpublished opinion of the Court of Appeals, issued October 12, 1981 (Docket No. 54997).

Appeal pending: No
Claimant: Johnnie Streeter
Employer: River Rouge Board of Education
Docket no.: B79 03208 67059
Date of decision: October 12, 1981

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COURT OF APPEALS HOLDING: ” … [S]ection 29 does not make the commission of acts which might be the subject of criminal prosecution a reason for disqualification for benefits.”

FACTS: An elementary school teacher was discharged for carrying a concealed .38 caliber pistol to school. She testified that she had been unable to obtain protection from the employer after being threatened by a parent who had been convicted of felonious assault.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “We first note, as did the referee, that it is irrelevant to our application of the term ‘misconduct’ in section 29 whether appellee’s conduct may have been sufficient cause for her dismissal by appellant.

“The record reveals that the first thing that appellee did when threatened by the angry parent was to report it to the acting principal. Only upon his failure to take what appellee believed to be definitive measures to divert the anticipated confrontation did she seek her own protection. Although her reaction to the situation constituted a grave error in judgment, there is competent evidence to support the referee’s conclusion that appellee’s actions did not constitute a ‘wilful or wanton disregard of [her] employer’s interests.’ Appellee’s actions were motivated by personal fear, and she attempted in good faith to perform her duty properly before the misconduct took place.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/90

Categories
12. Misconduct

Dunlap v MESC – 12.08

Dunlap v MESC
Digest no. 12.08

Section 29(1)(b)

Cite as: Dunlap v MESC, 99 Mich App 400 (1980); lv den 411 Mich 904 (1981).

Appeal pending: No
Claimant: James W. Dunlap
Employer: Tenneco, Inc.
Docket no.: B76 12291 RO 55244
Date of decision: August 12, 1980

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COURT OF APPEALS HOLDING: “Every minor misstatement on an employment application does not constitute statutory misconduct of a level to justify denial of payment of unemployment compensation benefits.”

FACTS: The claimant stated on his application and medical history questionnaire that he had not had back trouble. He was discharged when treatment for an alleged work-related back injury disclosed that the claimant had hurt his back in a swimming accident six years prior to his date of hire.

DECISION: The claimant is not disqualified for misconduct.

RATIONALE: “In this case, the act upon which the conclusion of misconduct was based occurred prior to employment. Every minor misstatement on an employment application does not constitute statutory misconduct of a level to justify denial of payment of unemployment compensation benefits.

“We would believe that plaintiff’s failure to characterize his minor swimming accident of six years earlier as ‘back trouble’ or ‘back injury’ was more error of judgment than a deliberate and intentional falsification of his medical history. Under these circumstances, we decline to find that the trial judge was clearly erroneous in holding that, on the facts of this case, the so- called misrepresentation on the job application did not constitute such misconduct as to disqualify plaintiff from unemployment compensation benefits.”

Digest Author:  Board of Review (original digest here)
Digest Updated: 6/91

Categories
12. Misconduct

Hislop v Cherry Hill School District – 12.25

Hislop v Cherry Hill School District
Digest no. 12.25

Section 29(1)(b)

Cite as: Hislop v Cherry Hill School Dist, unpublished opinion of the Michigan Employment Security Board of Review, issued March 13, 1980 (No. B78 17083 66126).

Appeal pending: No
Claimant: Robert Hislop
Employer: Cherry Hill School District
Docket no.: B78 17083 66126
Date of decision: March 13, 1980

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BOARD OF REVIEW HOLDING: (1) A claimant may not execute an enforceable agreement to waive the individual’s rights to benefits. (2) An ultimatum to resign or be dismissed because of alcoholism is a discharge for reasons other than misconduct.

FACTS: The claimant was an elementary school principal. The school district gave him an ultimatum to resign or be discharged for alcoholism. The Referee stated: “The claimant executed an agreement with the employer in which he resigned his position and agreed that he would make no claim against his employer, including benefits under the Michigan Employment Security Act.”

DECISION: (1) The waiver is void. (2) The claimant is not disqualified for misconduct discharge.

RATIONALE: The Board adopted the decision of the Referee, who held: “It should be noted that a claimant may not execute an enforceable agreement to give up his right to unemployment benefits under the provisions of subsection 31 of the Act.” “There is no question but what the claimant was going to be discharged for what the employer alleged to be misconduct under the Act: to wit his addiction to alcohol. It has been held on numerous occasions that alcoholism is a disease and as such cannot be the basis for a discharge for misconduct under the Act.”

Digest Author: Board of Review (original digest here)
Digest Updated: 11/90