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Cite as: Nichols v Auto Club Services, Inc, Unpublished Opinion of the Michigan Court of Appeals, Issued November 19, 2015 (Docket No. 14-001823-AE).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

Gallagher v Montcalm County – 12.153

Gallagher v Montcalm County
Digest no. 12.153

Section 29(1)(b)

Cite as: Gallagher v Montcalm Co, unpublished opinion of the Court of Appeals, issued August 17, 1999 (Docket No. 203429).

Appeal pending: No
Claimant: Dale Gallagher
Employer: Montcalm County
Docket no.: 96-000348-AE
Date of decision: August 17, 1999

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COURT OF APPEALS HOLDING: A claimant’s indirect and belated efforts to notify his employer of his absences and failure to contact his employer thereafter, when occurring immediately following other disciplinary action, may constitute disqualifying misconduct.

FACTS: Claimant was employed as a building inspector for Employer. On December 3, 1993, Claimant received a 3-day suspension for falsification of time cards, failure to return to work after breaks, and other things. On his first day back after this suspension, Claimant suffered from a spasmodic colon causing him to defecate uncontrollably while on his way to work. After cleaning himself, he stopped into work only briefly before leaving without communicating with anyone. Claimant’s daughter-in-law contacted his supervisor on December 9 about Claimant’s illness, and Claimant mailed in his time card on December 10 with the word “sick” written on it. Claimant never personally contacted his supervisor regarding his absence; Claimant did not provide medical verification, nor did his doctor ever tell him that he could not return to work. Claimant was sent a letter on December 17 informing him that his failure to return to work, make personal contact, or provide written clarification of his absence is considered voluntary termination of his employment.

On appeal of Claimant’s initial determination of eligibility, the ALJ determined that failure to keep Employer adequately informed as to why he was absent constituted disqualifying misconduct. The Board of Review affirmed the ALJ decision on different grounds, finding misconduct instead in failure for Claimant to provide medical verification of the reason for his absence. On appeal, the Circuit Court disagreed with the Board of Review’s reasoning, but affirmed the decision as not contrary to law, agreeing with the ALJ that misconduct stemmed from Claimant’s failure to keep the employer adequately informed as to the reason for his absence.

DECISION: The Circuit Court decision is affirmed, Claimant is disqualified from benefits due to misconduct.

RATIONALE: Generally, tardiness or absence which results from circumstances outside the claimant’s control cannot be considered to be misconduct, which is willful or wanton disregard of the employer’s interest. However, here, the evidence shows that Claimant’s doctor did not tell him that he could not return to work. Also, when Claimant stopped at Employer’s building the same day of his medical condition, he did not bother to appraise anyone of his situation or leave any form of communication, nor did he personally contact Employer that day or any day subsequent. “An employer . . . has a right to expect that its employees will provide appropriate notification of their reasons for an absence from work. Coming on the heels of a three-day disciplinary suspension,” Claimant’s actions constitute an intentional and substantial disregard for his employer’s interests. The Circuit Court did not clearly err by affirming the Board of Review’s decision.

Digest Author: Jack Battaglia
Digest Updated: 8/14