Categories
10. Voluntary Leaving

Cooper v Mount Clemens Schools – 10.89

Cooper v Mount Clemens Schools
Digest no. 10.89

Section 29(1)(a)

Cite as: Cooper v Mount Clemens Schools, unpublished opinion of the Barry Circuit Court, issued December 29, 1998 (Docket No. 98-194-AE).

Appeal pending: No
Claimant: Cyntheal Cooper
Employer: Mount Clemens Schools
Docket no.: B97-12037-146470
Date of decision: December 29, 1998

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CIRCUIT COURT HOLDING: A person who “resigns” after losing their job to a layoff has not voluntarily terminated their employment.

FACTS: On April 24, 1997 the claimant received a notice she would be laid off at the end of the contract year. On April 28, 1998 the claimant submitted a letter to the employer that indicated the claimant would not return to work for the employer in the next school year.

DECISION: The claimant is not disqualified for voluntary leaving.

RATIONALE: The Board of Review erred by finding the claimant left her position voluntarily. Claimant could not leave a job she already lost. “A person who `resigns’ after losing their job to a layoff has not voluntarily terminated their employment.”

Digest Author: Board of Review (original digest here)
Digest Updated:
7/99

Categories
10. Voluntary Leaving

Harrison v Hinman Co – 10.116

Harrison v Hinman Co
Digest no. 10.116

Section 29

Cite as: Harrison v Hinman Co, Unpublished Opinion of the Michigan Court of Appeals, Issued Mar. 22, 1996 (Docket No. 166274).

Appeal pending: No
Claimant: Joyce Harrison
Employer: Hinman Company
Docket no.: 92-002648-AE
Date of decision: March 22, 1996

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HOLDING: For the issue of whether an employee left work or was discharged under Section 29, the burden of proof falls on the Employer. Thus the burden to prove the nature of the separation (whether it was a quit or a discharge) falls on the employer.

FACTS: The Board of Review’s decision to find in favor of the Claimant was upheld by the Circuit Court. Employer then appealed to the Court of Appeals.

DECISION: The Court of Appeals affirmed the decision of the Circuit Court.

RATIONALE: Prior to reaching the question of whether a claimant should be disqualified for a quit or a discharge under Section 29  the question of the nature of the separation must first be addressed.  Whether the claimant quit or was discharged. For this question, “as with most disqualification issues, the burden of proof falls on the employer.”

In this case, the dispute rests on whether the claimant quit or was discharged. The referee and the Board of Review applied the appropriate standard, and the finding in favor of the Claimant is supported by evidence on the record.

Digest author: Nick Phillips
Digest editor: Jack Battaglia
Digest updated: 8/14

Categories
10. Voluntary Leaving

Tomei v General Motors Corp – 10.78

Tomei v General Motors Corp
Digest no. 10.78

Section 29(1)(a)

Cite as: Tomei v General Motors Corp, 194 Mich App 180 (1992).

Appeal pending: No
Date of decision: May 4, 1992

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COURT OF APPEALS HOLDING: In plant closing cases, the burden of proof for demonstrating the voluntariness of a claimant’s decision to leave or retire falls first on the employer. The employer must show that the choices it offered were reasonable, viable and clearly communicated.

FACTS: In 1985, GMC announced closure of it’s BOC Flint body assembly plant. Claimant had 17 years seniority and was 64 years old. He understood he could transfer to a Buick plant in Flint, wait and transfer at a later time, or stay where he was. Claimant believed he lacked seniority and was too old to retain a job if he transferred, so he stayed put. Two years later (December 1987) when the plant closed, he was involuntarily retired. It turned out that claimant could have held a job if he’d gone to Buick. Also he could have elected to take a layoff for up to two years when his plant closed, during which time he could have collected sub-pay benefits. He could then have retired at the end of two years instead of retiring when the Flint plant closed.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: Claimant was forced to rely on information provided by employer in making his employment decision. The information necessary for claimant to make an informed choice lay within the knowledge and control of the employer. Therefore, it is up to the employer to show that the options offered are not unreasonable, untenable or illusory. In this case, claimant’s decision to retire when his plant closed rather than accept a two year layoff with uncertain prospects for recall and an uncertain impact on future retirement rights, was not a voluntary severance of employment. Claimant “was forced to choose between untenable options in the face of an indeterminate future. While employment decisions are difficult under the best of circumstances, the mystery and confusion surrounding the decisions plaintiff had to make rendered it nearly impossible to make an informed, sensible choice.”

Digest Author: Board of Review (original digest here)
Digest Updated:
7/99

Categories
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

Categories
07. Eligibility - Able & Available

Dow Chemical Co v Quinn – 7.02

Dow Chemical Co v Quinn
Digest no. 7.02

Section 28(1)(c)

Cite as: Dow Chemical Co v Quinn, unpublished opinion of the Midland Circuit Court, issued June 10, 1985 (Docket No. 82-001391-AE-G).

Appeal pending: No
Claimant: Wilbur F. Quinn
Employer: Dow Chemical Company
Docket no.: B74 5033(4) 65240
Date of decision: June 10, 1985

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CIRCUIT COURT HOLDING: An unemployment claim does not prove itself. Claimant has the burden to prove eligibility for unemployment compensation.

FACTS: Claimant successfully established the termination of his labor dispute disqualification. However, claimant did not appear at the Referee hearing with regard to his eligibility. The determination and redetermination were in favor of the claimant. The Board of Review remanded for testimony, but once again the claimant failed to appear. The employer argued that the burden of proof is in claimant to affirmatively provide beyond the application itself that he is eligible.

DECISION: Claimant, having failed to meet his burden, should be denied benefits.

RATIONALE: Citing Ashford v Unemployment Compensation Commission, 328 Mich 428 (1950), the court placed the responsibility on claimant to move forward in support of his claim for unemployment benefits. Claimant cannot rely on the determination or redetermination where the Commission had found him entitled to benefits.

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

Categories
10. Voluntary Leaving

Ilitch v City of Livonia – 10.36

Ilitch v City of Livonia
Digest no. 10.36

Section 29(1)(a)

Cite as: Ilitch v City of Livonia, unpublished opinion of the Wayne Circuit Court, issued July 3, 1984 (Docket No. 84-407788 AE).

Appeal pending: No
Claimant: Joanne M. Ilitch
Employer: City of Livonia
Docket no.: B82 07871 RO1 84138
Date of decision: July 3, 1984

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CIRCUIT COURT HOLDING: Where an employee concludes on the basis of subjective convictions that the employment is terminated and leaves, the separation is disqualifying.

FACTS: The claimant was employed as a home delivery meals coordinator under a contract of employment that was to expire September 30, 1981. On September 23, 1981, claimant was called into the office of Mr. Duggan and advised that her contract would not be renewed. Because of some past experience with Mr. Duggan, claimant interpreted this interview as an immediate discharge and left the job site. The claimant, in fact, alleged that she was discharged. The employer testified that claimant quit her employment and that claimant was never told that her employment was terminated on September 23, 1981.

DECISION: The claimant is disqualified for voluntary leaving.

RATIONALE: “It can only be construed to be a perfectly reasonable approach on the part of a supervisor to call in a contract employee at a time when the term of the contract will soon be expiring and discuss with her the status of the program. On the other hand, it is entirely unreasonable for a contract employee, who has but one week left in the term of the contract under which she is working, to enter such a meeting and, without receiving any objective indication of immediate termination of her employment, to conclude entirely on the basis of her subjective convictions, that her employment was then and there being terminated. If ever there was competent, material and substantial evidence of simply ‘walking off the job,’ i.e., voluntary quit, the entire record in this case establishes that type of employment termination.

“Claimant had the burden of proof to show that she was not disqualified from benefits and … she failed to meet that burden of proof.”

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

Categories
10. Voluntary Leaving

Zausner v City of Kalamazoo – 10.09

Zausner v City of Kalamazoo
Digest no. 10.09

Section 29(1)(a)

Cite as: Zausner v City of Kalamazoo, unpublished opinion of the Court of Appeals of Michigan, issued June 26, 1984 (Docket No. B81 07242 78438).

Appeal pending: No
Claimant: Nancy Zausner
Employer: City of Kalamazoo
Docket no.: B81 07242 78438
Date of decision: June 26, 1984

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COURT OF APPEALS HOLDING: Reasonable efforts to comply with a city’s residency requirement are insufficient to avoid disqualification from unemployment benefits for voluntarily leaving work.

FACTS: When Plaintiff was hired by the employer, she acknowledged the city’s residency requirement. She did not, however, move into the city within six months, as required. At her request, defendant city granted an extension of an additional six months. When Claimant did not move into the city after the end of the extension, she was terminated.

DECISION: Claimant is disqualified for voluntary leaving.

RATIONALE: The burden of proof is on claimant where potential disqualification for benefits required inquiry into whether behavior causing termination of employment was voluntary, Cooper v University of Michigan, 100 Mich App 99, 103 (1980). In Echols v Employment Security Commission, 380 Mich 87 (1968), the Supreme Court held that a cab driver whose license was suspended for accumulating too many points, causing the loss of his job, was disqualified for voluntary leaving. “The within case is like Echols, in that there was a certainty that assumption of a known risk would result in the loss of her job, namely, failure to establish residency in the city within the specified time . . . Because of this certainty, it may fairly be said that she voluntarily left her job without good cause attributable to her employer.”

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

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

Categories
16. Procedures/Appeals

Snyder v RAM Broadcasting – 16.34

Snyder v RAM Broadcasting
Digest No. 16.34

Section 29

Cite as: Snyder v RAM Broadcasting, unpublished opinion of the Washtenaw County Circuit Court, issued April 26, 1983 (Docket No. 8223718AE).

Court: Washtenaw Circuit Court
Appeal pending: No
Claimant: Ann Snyder
Employer: RAM Broadcasting
Date of decision: April 26, 1983

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HOLDING: The court held that a hearing notice was deficient under the Administrative Procedures Act and the due process clause of the Michigan and United States Constitutions where (1)  it was not a plain statement  of the matters asserted and (2) even if understandable, was not listed in the notice of hearing as an issue which would be presented before the referee.

FACTS:  Claimant filed a timely appeal after the Agency disqualified her from benefits under the Voluntary Quit provision of Section 29(1)(a).  During her hearing, testimony was taken regarding her availability to work and efforts to obtain a job during the period in which she claimed benefits. As a result, she was found disqualified for benefits under Section 29(1)(a) and the seeking work provision of Section 28.  On appeal, the claimant sought reversal of the of the judge’s finding on the “seeking work” issue.  She alleged that she did actively seek employment and was denied a fair hearing on this issue in violation of the Michigan Employment Security Act and the due process clause of the state and federal constitutions.

DECISION: The court held that the hearing notice was deficient under the Administrative Procedures Act and the due process clauses of the Michigan and United States Constitutions. In addition, the referee’s failure to inform the claimant of all issues he planned to decide during the hearing, along with the consequences of failing to meet her burden of proof violated the fairness requirement of Section 33 of the Michigan Employment Security Act.

RATIONALE: The court found that the hearing notice violated the Administrative Procedures Act (APA) provision requiring “a short and plain statement of the matters asserted.”  Here, the court found that “words and phrases divided by slashes and followed by a string citation . . . do not provide a reasonably understandable notification that an issue will be considered, especially when the notification is intended for a lay person.”  

In discussing the due process requirements under the state and federal constitutions, the court cited Hanson v State Board of Registration, 253 Mich 601, 607 (1931), holding that unless the right is waived, a party before a state agency is “at least entitled to a reasonably definite statement of the charge or charges preferred against the accused.”  Here, the court found that the notice of hearing was not reasonably calculated to inform the claimant of the pendency of the seeking work issue: “Whatever the purpose of this convoluted array of words and slashes, it was not to intelligibly notify the plaintiff that her entire benefits package prior to the hearing date was in jeopardy if she did not affirmatively prove her efforts in search of employment.” Thus, the hearing notice was deficient under the APA and the Michigan and United States constitutions.

The court further held that Ms. Snyder was denied a fair hearing where she was not apprised of all the issues the referee intended to decide, along with the consequences of the plaintiff’s failure to carry her burden of proof.  As a result, Ms. Snyder’s hearing violated the fairness requirement of Section 33 of the Act.

Digest author: Laura Page, Michigan Law, Class of 2018
Digest updated: December 1, 2017

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