12. Misconduct

Hislop v Cherry Hill School District – 12.25

Hislop v Cherry Hill School District
Digest no. 12.25

Section 29(1)(b)

Cite as: Hislop v Cherry Hill School Dist, unpublished opinion of the Michigan Employment Security Board of Review, issued March 13, 1980 (No. B78 17083 66126).

Appeal pending: No
Claimant: Robert Hislop
Employer: Cherry Hill School District
Docket no.: B78 17083 66126
Date of decision: March 13, 1980

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BOARD OF REVIEW HOLDING: (1) A claimant may not execute an enforceable agreement to waive the individual’s rights to benefits. (2) An ultimatum to resign or be dismissed because of alcoholism is a discharge for reasons other than misconduct.

FACTS: The claimant was an elementary school principal. The school district gave him an ultimatum to resign or be discharged for alcoholism. The Referee stated: “The claimant executed an agreement with the employer in which he resigned his position and agreed that he would make no claim against his employer, including benefits under the Michigan Employment Security Act.”

DECISION: (1) The waiver is void. (2) The claimant is not disqualified for misconduct discharge.

RATIONALE: The Board adopted the decision of the Referee, who held: “It should be noted that a claimant may not execute an enforceable agreement to give up his right to unemployment benefits under the provisions of subsection 31 of the Act.” “There is no question but what the claimant was going to be discharged for what the employer alleged to be misconduct under the Act: to wit his addiction to alcohol. It has been held on numerous occasions that alcoholism is a disease and as such cannot be the basis for a discharge for misconduct under the Act.”

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

10. Voluntary Leaving

Kmiec v Ole Tacos – 10.54

Kmiec v Ole Tacos
Digest no. 10.54

Sections 29(1)(a), 29(1)(b)

Cite as: Kmiec v Ole Tacos, unpublished opinion of the Ottawa Circuit Court, issued August 22, 1979 (Docket No. 78-4545-AV).

Appeal pending: No
Claimant: Charles M. Kmiec
Employer: Ole Tacos
Docket no.: B77 2254 56841
Date of decision: August 22, 1979

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CIRCUIT COURT HOLDING: To determine whether a termination is a leaving or a discharge, the total facts of the matter must be assessed to determine the “proximate cause” of the termination.

FACTS: Claimant notified the employer that he was unhappy in his job and would give the employer two weeks notice of intent to quit when he had obtained another job. The employer notified the claimant he should set a definite separation date. After the claimant and employer discussed the matter, they agreed upon the date that claimant would end his employment.

DECISION: Claimant is disqualified for benefits pursuant to Section 29(1)(a) of the Act.

RATIONALE: “Our reading of the Referee’s opinion leads us to conclude that the Referee extended his consideration of facts and circumstances to those events occurring after claimant’s original notice to his employer that he intended to quit at some undetermined date in the future, and prior to the actual separation. … The Referee recognized that he was obliged to determine whether or not claimant was “primarily responsible” for his unemployment. We believe that such language is substantially synonymous with “proximate cause”, and that it goes beyond one who merely introduces the topic of a possible future separation.”

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