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Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).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

Helm v University of Michigan – 12.19

Helm v University of Michigan
Digest no. 12.19

Section 29(1)(b)

Cite as: Helm v Univ of Michigan, 147 Mich App 135 (1985).

Appeal pending: No
Claimant: Paul Helm
Employer: University of Michigan
Docket no.: B81 16305 80496
Date of decision: September 20, 1985

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COURT OF APPEALS HOLDING: A therapist’s letter in support of claimant’s testimony is entitled to be given probative effect as “evidence of a type commonly relied upon by reasonably prudent men in the conduct of their affairs.”

FACTS: Claimant, an alcoholic, blacked out during off-duty hours due to drinking and was hospitalized. The claimant’s girl friend notified the employer. The employer’s attempts to speak to the doctor were unsuccessful. Claimant was discharged for not calling in after three days. The employer, at the Referee hearing, submitted a letter purportedly from the therapist, which was not identified as to the author or his/her qualifications. The employer was aware of claimant’s alcoholism.

DECISION: The credibility finding made by the Referee must be “adequately considered” by the Board of Review and the Circuit Court; therefore, the case is remanded to the Board of Review.

RATIONALE: The letter from the therapist was submitted by the employer, not the claimant. The letter was signed by the therapist and written on hospital stationery. No objection was raised to the submission of the letter at the hearing. Even without the letter … plaintiff’s testimony, if believed, constituted proof of his alcoholic blackout.

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

12. Misconduct

Jones v Hackley Hospital – 12.14

Jones v Hackley Hospital
Digest no. 12.14

Section 29(1)(b)

Cite as: Jones v Hackley Hosp, unpublished opinion of the Muskegon Circuit Court, issued  October 2, 1984 (Docket No. 83-17596 AE).

Appeal pending: No
Claimant: Willie Jones, Jr.
Employer: Hackley Hospital
Docket no.: B82 13563 RO1 86935W
Date of decision: October 2, 1984

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CIRCUIT COURT HOLDING: Inability to get to work because of involuntary incarceration does not constitute wilful or wanton misconduct connected with the work.

FACTS: The claimant worked for the employer as a janitor. He was discharged after being absent for three consecutive days without notice to the employer. The claimant was under the constraints of a work release program from the County Jail. His work release privileges were revoked as a result of a complaint filed by his wife. The revocation of the work release privileges prevented the claimant from reporting to work.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “To hold that plaintiff’s [claimant’s] involuntary incarceration constituted misconduct connected with his employment would result in this court agreeing that wilfulness was present, where subject was held against his will, an interesting but illogical proposition. It is only reasonable to conclude that the word ‘connected’ as used in the legislative act, was intended to make a distinction between misconduct with reference to an individual’s private life and misconduct arising during and related to his employment.”

The claimant lost his work release privileges under circumstances which might have been completely beyond his control. “The reason behind the revocation of his work release did not have the slightest connection with his employment.”

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