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Cite as: Nelson v Robot Support, Inc, unpublished opinion of the Macomb County Circuit Court, issued October 3, 2017 (Docket No. 17-0123-AE).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

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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

12. Misconduct

Nichols v. Auto Club Services – 12.158

Nichols v. Auto Club Services & UIA
Digest No. 12.158

Section 421.29(1)(b)

Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).

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Appeal Pending: No
Claimant: Aisha Nichols
Employer: Auto Club Services Inc.
Date of Decision: November 19, 2015

HOLDING: Absences for good cause in violation of an employer’s no-fault attendance policy do not constitute misconduct under MCL 421.29(1)(b).

FACTS: In October 2012, claimant was hired as a customer sales and service representative for Auto Club Services Incorporated (“ACS”). After working for 90 days, ACS employees earned three days off from work for every six months. ACS had a written no-fault attendance policy with no written exceptions, and exceptions were very rare in practice. Between December 3, 2012, and February 5, 2013, claimant received three written discipline notices, two of which were related to absences or tardiness.

On February 28, 2013, while driving to work, claimant’s vision blurred, and she was unable to see. Claimant had previously experienced blurred vision and believed it was caused by “having a thyroid storm.” She left a voicemail with ACS informing them the (1) the reason for her absence was personal and (2) she could explain her absence upon her return on March 1, 2013.

Upon returning on March 1, 2013, ACS discharged claimant for her absence pursuant to their no-fault attendance policy. While being discharged, claimant informed ACS she felt unwell and could not see on February 28th. She did not provide medical documentation explaining her absence on the aforementioned date but had previously warned her employer she was not feeling well.

Claimant was disqualified from unemployment benefits pursuant to MCL 421.29(1)(b). During claimant’s hearing before an Administrative Law Judge (“ALJ”), the parties stipulated her absence was due to an illness, but there is a dispute whether the ALJ accepted that stipulation. The ALJ and subsequently, the Michigan Compensation Appellate Compensation (“MCAC”) and Wayne Circuit Court affirmed claimant’s determination of disqualified from benefits under MCL 421.29(1)(b). Claimant appeals arguing the lower tribunals’ (1) decisions were contrary to law and (2) fact finding was unsupported by competent, material, and substantial evidence.

DECISION: Claimant is not disqualified for misconduct pursuant to MCL 421.29(1)(b) because the absences were beyond her control, and thus, she had good cause for said absence.

RATIONALE: Misconduct has been defined as “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.” Carter v. Mich. Employment Security Comm., 364 Mich. 538, 541; 111 NW2d 817 (1961). However, infractions that may cause termination do not necessarily constitute misconduct under MCL 421.29(1)(b). Hagenbuch v. Plainwell Paper Co., Inc., 153 Mich. App. 834, 837-838; 396 NW2d 556 (1986). Absenteeism and tardiness for reasons not beyond a claimant’s control constitute misconduct. Id at 837. However, absenteeism and tardiness for reasons beyond a claimant’s control which are otherwise with good cause do not constitute misconduct. Washington v. Amway Grand Plaza, 135 Mich. App. 652, 658; 354 NW2d 299 (1984).

The court argued the basis of claimant’s discharge was her accumulation of absences in violation of ACS’ attendance policy, not claimant’s failure to notify ACS of her medical condition to explain her final absence. This was confirmed by an ACS senior employee who testified that claimant would have been discharged due to the absences, regardless of whether she provided an explanation. Claimant provided evidence that her absences and tardiness prior to the February 28th incident were due to one or more chronic medical conditions related to her thyroid. Thus, these absences were beyond her control and constituted good cause.

The lower tribunals’ factual findings and ACS’s offered evidence was not inconsistent with claimant’s showing of good cause for her absences. Furthermore, the lower tribunals did not determine that claimant’s absences were without good cause and thus, erred in disqualifying claimant under MCL 421.29(1)(b). The Court held claimant was wrongfully disqualified for misconduct and remanded for further proceedings.

Digest Author: Sean Higgins, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

12. Misconduct

Veteran’s Thrift Stores, Inc v Krause – 12.18

Veteran’s Thrift Stores, Inc v Krause
Digest no. 12.18

Section 29(1)(b)

Cite as: Veterans Thrift Stores, Inc v Krause, 146 Mich App 366 (1985).

Appeal pending: No
Claimant: Jayne A. Krause
Employer: Veterans Thrift Stores, Inc.
Docket no.: B83 15758 93527
Date of decision: October 8, 1985

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COURT OF APPEALS HOLDING: “Once the employer raises the issue of disqualification for misconduct under Section 29(1)(b) and submits evidence of a number of absences which, if unsupported by sufficient reasons, are so excessive as to constitute misconduct within the contemplation of this Section, then the burden is upon the claimant to provide a legitimate explanation for the absences.”

FACTS: During November 15, 1982, to March 2, 1983, claimant logged six absences due to personal illness and one related to the illness of a relative. With one exception, claimant failed to submit documentation supporting the claimed illnesses.

DECISION: The burden of proof is upon the claimant; therefore, the case is remanded to the Board of Review.

RATIONALE: “The relevant facts are entirely in the hands of the claimant and, for all practical purposes, cannot be discovered by the employer.”

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

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