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

View/download the full decision

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
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).

Categories
12. Misconduct

Nelson v Robot Support, Inc. – 12.160

Nelson v Robot Support, Inc.
Digest No. 12.160

Section 421.29(1)(b)

Cite as: Nelson v Robot Support, Inc, unpublished opinion of the Macomb County Circuit Court, issued October 3, 2017 (Docket No. 17-0123-AE).

Court: Circuit Court
Appeal pending:No
Claimant: Lisa Nelson
Employer: Robot Support, Inc.
Date of decision: October 3, 2017

View/download the full decision

HOLDING: Excessive absences beyond a claimant’s control do not constitute the basis for misconduct. A claimant’s use of text messaging, instead of telephone, to communicate with his or her employer regarding the absences also does not constitute misconduct.

FACTS: Claimant was employed by Robot Support as an administrative assistant. Claimant left work in April 2016 to care for her mother, who was ill. During that time, Claimant also became ill and ended up missing 19 consecutive days of work. During that absence, Claimant sent her employer text messages to keep it updated. When Claimant returned to work, she was fired.

DECISION: It is well established that excessive absences beyond a claimant’s control do not constitute the basis for misconduct. Washington v Amway Grand Plaza, 135 Mich App 652, 658 (1984). It was contrary for law for the ALJ in this case to state that Claimant’s excessive absences were disqualifying misconduct, when really it based his decision on the fact that Claimant communicated her need for absences via text message instead of telephone.

RATIONALE: The ALJ’s findings of fact–that Claimant never communicated with her employer regarding the severity of her situation or the need for leave and sent updates to her employer via text–are supported by material and competent evidence. Claimant submitted medical documentation proving that her absences were beyond her control because both she and her mother were ill.

However, the ALJ based its decision on the lack of communication about the absences, not the absences themselves. The ALJ reasoned that it was disqualifying misconduct for Claimant to not call her employer during her extended absence. The Circuit Court held that the ALJ erroneously applied the law to the facts because, according to its decision, Claimant wasn’t terminated for her alleged misconduct, but rather her failure to communicate by telephone. The employer did not have a written policy requiring employee communications by telephone, and Claimant had in the past communicated with her employer via text. The Circuit Court held the decision of the ALJ contrary to law and reversed the decision of the MCAC, which affirmed the ALJ’s decision disqualifying Claimant from receiving benefits.

Digest author: Sarah Harper, Michigan Law, Class of 2017
Digest updated: December 26, 2017

Categories
12. Misconduct

Hecko v. Continuum of Clio – 12.140

Hecko v. Continuum of Clio, UIA
Digest No. 12.140

Section 421.29(1)(b)

Cite as: Hecko v Continuum of Clio Inc, unpublished opinion of the Genesee County Circuit Court, issued December 1, 2010 (Docket No. 09-90617-AE).

Appeal pending: No
Claimant: Cheryl K. Hecko
Employer: Continuum of Clio, Inc.
Date of decision: December 1, 2010

View/download the full decision

HOLDING: Working while off the clock is not misconduct under Carter v MESC, 364 Mich 538 (1961).

FACTS: Claimant worked for employer as a housekeeper from February 3, 2000 to November 20, 2007. Claimant regularly came into work early and worked off the clock because she wanted to “give more than a hundred percent to my job because [she] liked [her] job.” Claimant was fired after she was injured while working off the clock. Employer stated she was fired for working off the clock and Claimant stated she was fired for getting injured.

The ALJ found no misconduct. Board of Review reversed.

DECISION: The Circuit Court reversed the Board of Review’s decision because it was contrary to law and not supported by any competent, material, and substantial evidence on the whole record.

RATIONALE: The Board of Review misapplied the Carter standard. There was no evidence in the record to show that Claimant’s working off the clock was done in willful or wanton disregard of the employer’s interest.

In addition, while irrelevant, the Circuit Court found that Claimant was fired for being injured, not for working off the clock.

Digest author: Andrea M. Frailey, Michigan Law, Class of 2017
Digest updated: October 30, 2017

Categories
12. Misconduct

Washington v. Michigan Training Unit, Department of Corrections – 12.151

Washington v. Michigan Training Unit, Department of Corrections

Digest No. 12.151
Section 29(1)(b)

Cite as: Washington v Michigan Training Unit, unpublished opinion of the Ingham County Circuit Court, issued March 27, 2007 (Docket No. 06-869-AE).

Appeal pending: No
Claimant: Shawonna Washington
Employer: Michigan Training Unit, Department of Corrections
Date of decision: March 27, 2007

View/download the full decision

HOLDING: None of the following constitute misconduct under Section 421.29(1)(b): (1) absence for illness supported by a doctor’s note, (2) pre-authorized absence to attend a funeral, and (3) absence for inability to drive a long distance due to lack of gas money.

FACTS: Claimant’s employer required her to subscribe to a “last chance agreement” to address her job performance. The employer later deemed she violated it for: (1) absence for illness supported by a doctor’s note, (2) pre-authorized absence to attend a funeral, and (3) absence for inability to drive a long distance due to lack of gas money. Claimant was then disqualified from benefits by the UIA based on a determination of work-related misconduct. The ALJ and Board of Review affirmed.

DECISION: The alleged violations did not rise to misconduct under Section 421.29(1)(b).

RATIONALE: The lower decisions erred by failing to properly apply the Michigan Supreme Court’s “carelessness or negligence principle,” Carter v Employment Security Comm., 364 Mich 538 (1961), to the claimant’s conduct. This principle requires behavior to be more culpable than ordinary negligence or inadvertence—which was all the claimant’s behavior was—to be misconduct. The court found nothing in the record to support a finding of willful disregard of the employer’s interest by Claimant. At most, Claimant was unable to understand what was expected of her, made a good-faith error, or was inadvertently remiss. None of these failings rises to misconduct. Furthermore, even had Claimant violated the agreement, this would not have necessarily constituted misconduct. And in any case, as a matter of law such a violation would not be connected with the work because it was a rule of selection and not one of conduct. Reed v Employment Security Comm, 364 Mich 395 (1961).

Digest author: Austin L. Webbert, Michigan Law, Class of 2017
Digest updated: November 26, 2017

Categories
16. Procedures/Appeals

Pena v. Adecco CS Inc. – 16.80

Pena v. Adecco CS Inc.
Digest No. 16.80

Section 421.33

Cite as: Pena v Adecco SC Inc, unpublished opinion of the Ottawa County Circuit Court, issued January 12, 2007 (Docket No. 06-55080-AE).

Appeal pending: No
Claimant: Reyes Pena
Employer: Adecco CS Inc.
Date of decision: January 12, 2007

View/download the full decision

HOLDING: Under MCL 421.33, a party who fails to attend an ALJ hearing waives those rights which might have been exercised at a hearing, even if a new issue that was not listed on the notice of hearing is presented during the hearing.

FACTS: Claimant did not attend the ALJ hearing against Adecco CS Inc. The notice of hearing for that ALJ hearing stated that the issue to be presented at the hearing was “temporary help firm” pursuant to MCL 421.29(1)(l). During the hearing, Adecco strayed from the listed issue by testifying and providing evidence that Claimant committed misconduct under MCL 421.29(1)(b). The notice of hearing did not inform Claimant that misconduct was an issue.

The ALJ held Claimant was disqualified from benefits for misconduct under MCL 421.29(1)(b). The Board of Review affirmed the decision of the ALJ and denied rehearing. Claimant appealed to Ottawa County Circuit Court.

DECISION: The Court affirmed the decision of the Board of Review because Claimant’s failure to participate in the hearing constitutes an act of neglect that deprives Claimant of the rights which Claimant may have exercised at the hearing.

RATIONALE: Rule 421.1206 of the Michigan Administrative Code (rescinded in 2015) requires an ALJ to grant an adjournment of a hearing in which a new issue that was not cited in the notice of hearing was raised unless both parties knowingly agree to proceed on the new issues. This rule was refined in Szypa v Kasler Electric Co, 136 Mich App 116 (1984). There, the Michigan Court of Appeals held that, when an issue is raised before an ALJ that was not placed in the notice of hearing, (a) a party is entitled to an adjournment if either party requests it and (b) no evidence may be taken on the new issue unless a knowing and informed waiver of the adjournment is obtained. Id. at 120. In Syzpa, the claimant was present at the hearing and did not waive his right to adjournment, rendering the proceedings on the new issue improper.

Here, Claimant did not participate in the hearing. MCL 421.33 states that “if the appellant fails to appear or prosecute the appeal, the referee may dismiss the proceedings or take other actions considered available.” One such of these “other actions” is taking evidence on an issue that was not discussed in the notice of hearing.

An absent party cannot request an adjournment or provide a knowing and informed waiver. Courts have referred to parties’ failure to appear for a hearing as “extravagant and indefensible neglect.” See Radke v Nelson Mill Co, 37 Mich App 104 (1971). Failure to attend a properly noticed hearing is an act of neglect, and the party who neglects to attend the hearing waives the right to request an adjournment or provide knowing and informed consent to waiving an adjournment. Because Claimant failed to participate in the ALJ hearing, he waived his rights to an adjournment on the unannounced misconduct issue.

Digest author: Sean Higgins, Michigan Law, Class of 2017
Digest updated: November 4, 2017