12. Misconduct

Decess v. Central State Community Service – 12.137

Decess v. Central State Community Service
Digest No. 12.137

Section 421.29(1)(b)

Cite as: Decess v Central State Community Service, unpublished opinion of the Ingham County Circuit Court, issued December 14, 2010 (Docket No. 10-664-AE).

Appeal pending: No
Claimant: Tiffany L. Decess
Employer: Central State Community Service
Date of decision: December 14, 2010

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HOLDING: The Carter v Employment Security Comm, 364 Mich 538 (1961) requirement of “carelessness or negligence of such 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” requires more than mere negligent or inadvertent behavior.

FACTS: Claimant was employed by Central State Community Service as a direct caregiver to six developmentally disabled residents from December 6, 2006 until she was fired on November 3, 2008. She was fired for allegedly leaving a resident unattended in a running van for 3-5 minutes while she went inside the home. Claimant testified that the resident was never out of her sight.

The ALJ found Claimant disqualified for misconduct. This decision was affirmed by the Board of Review.

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

RATIONALE: There was uncontradicted Claimant testimony in the record that Claimant followed the practices that she had been trained on. The employer offered no evidence to the contrary. There was no evidence produced by the employer that could prove statutory misconduct, whether deliberate or negligent.

Following the Carter standard, the Circuit Court found that even if Claimant had been negligent, Carter requires the violation be more than negligent or inadvertent. There was no evidence in the record to support a finding that Claimant had acted with carelessness amounting to a disregard of her employer’s interests.

Finally, the Circuit Court relied on Razmus v Kirkhof Transformer, 137 Mich App 311 (1984) and Linski v Employment Security Commission, 358 Mich 239; 99 NW2d 795 (1966) to find that violating an employer’s rules is not, per se, misconduct within the meaning of the statute.

Digest author: Andrea M. Frailey, Michigan Law, Class of 2017
Digest updated: 10/31/2017

07. Eligibility - Able & Available

Duell v St Joseph Hospital – 7.11

Duell v St. Joseph Hospital
Digest no. 7.11

Section 28(1)(c)

Cite as: Duell v St Joseph Hosp, unpublished opinion of the Michigan Employment Security Board of Review, issued July 10, 1978 (Docket No. B76 14767 RO 54926).

Appeal pending: No
Claimant: Keith P. Duell
Employer: St. Joseph Hospital
Docket no.: B76 14767 RO 54926
Date of decision: July 10, 1978

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BOARD OF REVIEW HOLDING: A full-time college student’s credible testimony of willingness to change courses or quit school, to accept full-time employment, is competent proof of the claimant’s eligibility.

FACTS: The claimant resigned his position at a Grand Rapids hospital because he was living, and attending full-time college courses in East Lansing. He testified he would change his class schedule or drop out of school in order to accept permanent full-time work.

DECISION: The claimant is eligible for benefits.

RATIONALE: “The referee, in his reasons for decision, indicated that he tended to believe the claimant’s testimony with respect to dropping his classes if he had been offered full-time work. However, the referee stated that it must be established by competent proof that the individual has actually dropped out of school in order to obtain full-time work in the past. The referee indicated that the case In the Matter of the Claim of Robert B. Burandt, Appeal Docket No. B72-9541-RO-44541, stands for this proposition for the reason that otherwise the testimony of the individual that he would drop out of school in order to obtain full-time work is self-serving testimony, and not competent proof to establish the fact without some evidence that this has occurred in the past.”

“The majority of the Board of Review believes that the case entitled Michael S. Breshgold v Michigan Employment Security Commission, Civil Action No. 77-708893-AE (Circuit Court for the County of Wayne, 1978), is controlling. The holding in theBreshgold case states that because a claimant is a full-time student does not categorically mean that the student has necessarily placed limitations on his availability so as to remove him from the labor market. Under that case, the testimony of the claimant, to the effect that he would adjust his hours or quit school to accept full-time employment, would be sufficient, if credible.”

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