16. Procedures/Appeals

Pena v. Adecco CS Inc. – 16.80

Pena v. Adecco CS Inc.
Digest No. 16.80

Section 421.33

Cite as: Pena v Adecco SC Inc, unpublished opinion of the Ottawa County Circuit Court, issued January 12, 2007 (Docket No. 06-55080-AE).

Appeal pending: No
Claimant: Reyes Pena
Employer: Adecco CS Inc.
Date of decision: January 12, 2007

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HOLDING: Under MCL 421.33, a party who fails to attend an ALJ hearing waives those rights which might have been exercised at a hearing, even if a new issue that was not listed on the notice of hearing is presented during the hearing.

FACTS: Claimant did not attend the ALJ hearing against Adecco CS Inc. The notice of hearing for that ALJ hearing stated that the issue to be presented at the hearing was “temporary help firm” pursuant to MCL 421.29(1)(l). During the hearing, Adecco strayed from the listed issue by testifying and providing evidence that Claimant committed misconduct under MCL 421.29(1)(b). The notice of hearing did not inform Claimant that misconduct was an issue.

The ALJ held Claimant was disqualified from benefits for misconduct under MCL 421.29(1)(b). The Board of Review affirmed the decision of the ALJ and denied rehearing. Claimant appealed to Ottawa County Circuit Court.

DECISION: The Court affirmed the decision of the Board of Review because Claimant’s failure to participate in the hearing constitutes an act of neglect that deprives Claimant of the rights which Claimant may have exercised at the hearing.

RATIONALE: Rule 421.1206 of the Michigan Administrative Code (rescinded in 2015) requires an ALJ to grant an adjournment of a hearing in which a new issue that was not cited in the notice of hearing was raised unless both parties knowingly agree to proceed on the new issues. This rule was refined in Szypa v Kasler Electric Co, 136 Mich App 116 (1984). There, the Michigan Court of Appeals held that, when an issue is raised before an ALJ that was not placed in the notice of hearing, (a) a party is entitled to an adjournment if either party requests it and (b) no evidence may be taken on the new issue unless a knowing and informed waiver of the adjournment is obtained. Id. at 120. In Syzpa, the claimant was present at the hearing and did not waive his right to adjournment, rendering the proceedings on the new issue improper.

Here, Claimant did not participate in the hearing. MCL 421.33 states that “if the appellant fails to appear or prosecute the appeal, the referee may dismiss the proceedings or take other actions considered available.” One such of these “other actions” is taking evidence on an issue that was not discussed in the notice of hearing.

An absent party cannot request an adjournment or provide a knowing and informed waiver. Courts have referred to parties’ failure to appear for a hearing as “extravagant and indefensible neglect.” See Radke v Nelson Mill Co, 37 Mich App 104 (1971). Failure to attend a properly noticed hearing is an act of neglect, and the party who neglects to attend the hearing waives the right to request an adjournment or provide knowing and informed consent to waiving an adjournment. Because Claimant failed to participate in the ALJ hearing, he waived his rights to an adjournment on the unannounced misconduct issue.

Digest author: Sean Higgins, Michigan Law, Class of 2017
Digest updated: November 4, 2017