16. Procedures/Appeals

Bouchard v. Lavdas Enterprises, Inc. – 16.84

Bouchard v. Lavdas Enterprises, Inc.
Digest No. 16.84

Section 421.33(1)

Cite as: Bouchard v Lavdas Enterprises, Inc., unpublished opinion of the Macomb County Circuit Court, issued June 14, 2013 (Docket No. 2012-4168-AE).

Appeal pending: No
Claimant: Patricia J. Bouchard
Employer: Lavdas Enterprises, Inc.
Date of decision: June 14, 2013

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HOLDING: Claimant, through her attorney, was present at the hearing for the purpose of prosecuting her appeal pursuant to MCL 421.33.

FACTS: The Unemployment Insurance Agency issued a redetermination in which it found Claimant ineligible to receive unemployment benefits and ordered Claimant to pay restitution.

Claimant appealed the redetermination and Claimant’s counsel appeared at the hearing without Claimant present. The ALJ held that Claimant was required to appear at the hearing and that her failure to do so constituted a failure to prosecute her appeal pursuant to MCL 421.33. As a result, the ALJ dismissed Claimant’s appeal. The Board of Review affirmed the ALJ’s decision.

DECISION: The decisions of the ALJ and Board of Review are reversed and the case is remanded for a re-hearing before an ALJ.

RATIONALE: Per MCR 2.117(B)(l), “an appearance by an attorney for a party is deemed an appearance by the party. Unless a particular rule indicates otherwise, an act required to be performed by a party may be performed by the attorney representing the party.” Further, MCL 421.31 provides: “any individual claiming benefits in any proceeding before the commission or a court may be represented by counsel or other duly authorized agent.”

Based upon the above-referenced authority, the Court was satisfied that Claimant’s failure to personally appear at the hearing did not constitute a failure to prosecute her appeal.

Digest author: Stephanie Marshak, Michigan Law, Class of 2016
Digest updated: October 20, 2017

14. Disqualifications - Other

Ginez v University of Michigan Medical Center – 14.11

Ginez v University of Michigan Medical Center
Digest no. 14.11

Section 29(1)(i)

Cite as: Ginez v Univ of Michigan Medical Center, unpublished opinion of the Washtenaw County Circuit Court, issued April 21, 1999 (Docket No. 98-10274-AE).

Appeal pending: No
Claimant: Purificacion O. Ginez
Employer: University of Michigan Medical Center
Docket no.: B98-01381-147739W
Date of decision: April 21, 1999

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CIRCUIT COURT HOLDING: Claimant is not subject to disqualification under Section 29(1)(i) unless the common law elements of theft are established.

FACTS: Claimant worked for the employer from 1979 to November 10, 1997. On November 7, 1997 at the end of her shift she experienced an asthma attack. Claimant went to a “satellite” pharmacy near her ward for medication. The pharmacy belonged to the employer. Though the pharmacy was closed, claimant knew where the medication was kept and prepared an inhaler for her use. Her supervisor approached and asked if she was acting appropriately. Claimant felt she was acting appropriately because she had been allowed to use inhalers from the pharmacy in the past. Her supervisor had no knowledge of that, and checked with a nurse manager. The employer’s policy was that employees in similar situations should seek treatment in an emergency room. Claimant used the inhalant and left the unused portion. As a result, the employer suspended, then ultimately discharged her.

DECISION: Claimant is not disqualified from receiving benefits under Section 29(1)(i).

RATIONALE: Theft is not defined in the M.E.S. Act. Black’s Law Dictionary defines “theft” as a “popular name for `larceny’.” Larceny is prohibited by MCL 750.356 et seq, but is not defined by that statute and the elements must be found in common law. The elements of larceny are laid out in People v Gimotty, 216 Mich App 254, 257-258 (1996), as the “taking and carrying away of the property of another, done with felonious intent and without the owner’s consent.” The court found the claimant took the inhaler with the intent to deprive the employer of some value. The issue was whether the employer consented to the claimant’s use of the inhaler; if so, then her actions cannot be considered theft. While the employer had a policy disallowing such actions, the claimant’s supervisor was not aware of that policy. The court concluded the “record does not contain substantial and competent evidence of the elements of theft, nor is there an articulated finding on these questions.” The court rejected the Board’s additional rationale that a disqualification was justified “because the product taken was a prescription drug in a hospital setting.”

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

04. Total or Partial Unemployment

Brown v LTV Aerospace Corp – 4.01

Brown v LTV Aerospace Corp
Digest no. 4.01

Section 48

Cite as: Brown v LTV Aerospace Corp, 394 Mich 702 (1975).

Appeal pending: No
Claimant: Russell W. Brown, et al.
Employer: LTV Aerospace Corporation
Docket no.: B70 773 38400
Date of decision: September 8, 1975

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SUPREME COURT HOLDING: (1) A pro-rata vacation allowance at the time of layoff is not a termination allowance and may be considered as vacation pay. (2) Where claimants are not numerous enough to require a class action, and their consolidated appeal is filed in a circuit other than Ingham, the appeal must be dismissed as to any claimant not residing in the circuit of filing.

FACTS: At the time of layoff, the claimants were paid a pro-rata share of their annual vacation pay. These payments were held to be remuneration under Section 48 of the Act. The claimants appealed to Macomb Circuit Court, where the appeal was dismissed as to claimant Boyer because he resided in Oakland County.

DECISION: (1) The pro-rata vacation pay was remuneration. (2) Boyer’s appeal was properly dismissed.

RATIONALE: (1) Analysis of the union contract ” … indicates that the agreement speaks of vacation pay to an employee regularly employed, of one ‘at the time of termination’ and one ‘terminated for lack of work and subsequently recalled’ in exactly the same way. The emphasis is all on guaranteeing vacation pay in accord with credit earned because of time worked. The system is integral and it is no different ‘at time of separation’ from either regular annual anniversary payments or payments of allowances for those terminated and then recalled.”

“The language of the statute is unambiguous, and it is clear that under [Section] 38 Boyer should have filed his appeal in either Oakland Circuit Court, the circuit court of the county in which he resided, or the Ingham Circuit Court.

Section 38 is a statutory grant of jurisdiction to certain circuit courts; if an appeal is improperly filed in the wrong court, that court has no option but to dismiss the action for lack of jurisdiction.”

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