10. Voluntary Leaving

Walsh v First Metropolitan Title – 10.82

Walsh v First Metropolitan Title
Digest no. 10.82

Section 29(1)(a)

Cite as: Walsh v First Metro Title, unpublished opinion of the Oakland Circuit Court, issued January 26, 1998 (Docket No. 97-551063-AE).

Appeal pending: No
Claimant: Kathleen Walsh
Employer: First Metropolitan Title
Docket no.: B97-01169-RO1-144003W
Date of decision: January 26, 1998

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CIRCUIT COURT HOLDING: The claimant’s immediate termination by the employer is disqualifying under Section 29(1)(a) when the claimant failed to provide a two week notice and was uncooperative when asked if the claimant had accepted employment with a competitor.

FACTS: The claimant worked as a title examiner for the involved employer. On September 17, 1996, the claimant informed the employer she was resigning to accept employment with another title company effective September 20, 1996. The employer was concerned the claimant was going to work for a competitor, and asked the claimant where she was going, but she declined to disclose the identity of the new employer. The employer indicated there is a lot of pirating of employees in this industry. The employer discharged the claimant immediately pursuant to its practice to accept an employee’s resignation as immediately effective when the employee refuses to disclose the identity of the new employer.

DECISION: The claimant is disqualified from receiving benefits under Section 29(1)(a) of the Michigan Employment Security Act.

RATIONALE: The court noted the Referee distinguished this matter from Stephen’s Nu-Ad, Inc v Green, 168 Mich App 219 (1988), because the claimant did not give the employer the benefit of a two week notice. The court stated “[i]t appears from the record that [claimant]’s poor handling of her resignation, including her failure to give her employer the courtesy of a two week notice, and the fact that she appeared to be going to work for a competitor led to her termination on September 17, 1996.” The court found those facts supported the conclusion that the claimant’s separation was “the result of an unrestrained, volitional, freely chosen or willful action on her part.”

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

10. Voluntary Leaving

Stephen’s Nu-Ad, Inc v Green – 10.24

Stephen’s Nu-Ad, Inc v Green
Digest no. 10.24

Section 29(1)(a) & (b)

Cite as: Stephen’s Nu-Ad, Inc v Green, 168 Mich App 219 (1988).

Appeal pending: No
Claimant: Howard Green
Employer: Stephen’s Nu-Ad, Inc.
Docket no.: B86 02424 102397W
Date of decision: April 19, 1988

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COURT OF APPEALS HOLDING: Claimant’s immediate termination by the employer after having given notice of intent to quit is not disqualifying under Section 29(1)(a). However, since claimant made it clear and was unwaivering that he intended to quit after his two week notice, claimant is disqualified after the date he intended to quit under Section 29(1)(a).

FACTS: On 2-3-86 claimant informed the employer that on 2-15-86 he would no longer be working for the employer. Claimant was asked to continue the employment relationship, but he declined. Later that day the employer told claimant his employment was being immediately terminated.

DECISION: Claimant is not disqualified for the period of 2-3-86 to 2-15-86 under Section 29(1)(a) but claimant is disqualified after 2-15-86 under Section 29(1)(a).

RATIONALE: Claimant’s leaving on 2-3-86 was not voluntary. “The notice of an intention to permanently leave work in two weeks is not notice of an intention to permanently leave work immediately. If an employer so chooses to treat the former identically with the latter — which, of course, is an employer’s prerogative — this does not transmute, for purposes of the Michigan Employment Security Act or otherwise, the employee’s premature separation from his or her job into a voluntary action on the part of the employee.”

However, due to claimant’s persistent and irrefragable declarations that under no circumstance would he work for the employer after 2-15-86, claimants unemployment after 2-15-86 was voluntary and disqualifying under Section 29(1)(a).

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

12. Misconduct

Miller v Visiting Nurse Association – 12.29

Miller v Visiting Nurse Association
Digest no. 12.29

Section 29(1)(b)

Cite as: Miller v Visiting Nurse Association, unpublished opinion of the Michigan Employment Security Board of Review, issued July 27, 1978 (Docket No. B76 17052 54236).

Appeal pending: No
Claimant: Linda Miller
Employer: Visiting Nurse Association
Docket no.: B76 17052 54236
Date of decision: July 27, 1978

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BOARD OF REVIEW HOLDING: A discharge in anticipation of voluntary leaving is a non-disqualifying separation.

FACTS: The claimant was employed as a secretary. “On May 11, 1976, the claimant notified her employer that she intended to quit on July 10, 1976. On June 23, 1976, the employer discharged the claimant because of the claimant’s projected leaving.”

DECISION: “It is held that the claimant’s discharge on June 23, 1976 is non-disqualifying under Section 29 of the Act.”

RATIONALE: “Appeal Board precedent on the issue of a discharge in anticipation of a quit is at odds. One view (followed by the Referee in this matter) is that the discharge is disqualifying under Section 29(1)(a). Eg, In re Farmer (Michigan Kitchen Distributors), B72 2870 41782. The other view is that such a discharge is a non-disqualifying separation. Eg, In re Howarth (Falvey Autos, Inc.), B65 3611 34164; In re Terry (Paul’s Steak House), B64 5185 33210. See also Carter’s Hamburgers, Inc. v Employment Security Commission, Case No 316, 234 (Wayne County Cir Ct 1961) and Hubertv Appeal Board, Case No 323, 171 (Wayne County Cir Ct 1962).

“In our opinion, the latter view is correct. Under Section 29(1)(a), a ‘leaving’ must be ‘voluntary’ to be disqualifying. When an employee is discharged for giving notice of an intent to leave his work at a future date, his leaving is involuntary. Absent proof to the contrary, the employee cannot be deemed to have chosen unemployment. Rather, his unemployment is the result of his employer’s judgment about the efficiency of the firm.”

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