Ciaramitaro v Modern Hard Chrome Service – 4.26

Ciaramitaro v Modern Hard Chrome Service
Digest no. 4.26

Section 48

Cite as: Ciaramitaro v Modern Hard Chrome Service, unpublished opinion of the Macomb Circuit Court, issued November 1, 1996 (Docket No. 96-4644-AE).

Appeal pending: No
Claimant: Sam P. Ciaramitaro
Employer: Modern Hard Chrome Service
Docket no.: B91-12323RR-131804W
Date of decision: November 1, 1996

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CIRCUIT COURT HOLDING: Where claimant involuntarily retired and received a week’s pay for each year he worked for employer, such pay was severance pay and was not remuneration under Section 48.

FACTS: Claimant retired involuntarily on February 2, 1990. As part of the early retirement package claimant received a 34 week “salary continuation” from February 8, 1990 through September 27, 1990. He did not apply for benefits until after those payments ended. The MESC held that the claimant received severance pay which is not remuneration and cannot be used to establish credit weeks.

DECISION: Claimant is ineligible for benefits because he had insufficient credit weeks in the 52 week period preceding his application to establish a claim.

RATIONALE: Claimant failed to prove that he was legally entitled to receive a continuing weekly salary if involuntarily retired. Claimant performed no services in exchange for the monies he received.

Digest Author: Board of Review (original digest here)
Digest Updated:
7/99

Kulling v Kirk Design, Inc – 3.07

Kulling v Kirk Design, Inc
Digest no. 3.07

Sections 46(d), (now 46(g)); 46a(1)

Cite as: Kulling v Kirk Design, Inc, unpublished opinion of the Wayne County Circuit Court, issued February 1, 1990 (Docket No. 89-910000-AE).

Appeal pending: No
Claimant: David Kulling
Employer: Kirk Design, Inc.
Docket no.: B87-16118-107903
Date of decision: February 1, 1990

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CIRCUIT COURT HOLDING: The claimant was not entitled to establish a benefit year under Section 46a(1), the alternative earnings qualifier, because he owned more than a 50% proprietary interest in the employing unit and Section 46(d) (now 46(g)) controls.

FACTS: Claimant owned 100% of the employing corporation. On March 5, 1987 he stopped drawing his salary from the corporation. The corporation stopped operating on September 30, 1987. On October 25, 1987 the claimant filed for unemployment benefits. The MESC denied the claim because claimant had more than a 50% proprietary interest in the employing corporation, only established 18 credit weeks and thus could not establish a benefit year.

The claimant argued under the alternative qualifier provision, Section 46a(1), he should be able to establish a benefit year.

Section 46a(1) became effective on January 2, 1982 followed by Section 46(d) on July 24, 1983.

DECISION: The claimant was not entitled to establish a benefit year under Section 46a(1), the alternative qualifier.

RATIONALE: The court noted that Section 46(d) begins with the statement: “Notwithstanding subsection (a)…” and the fact subsection (d) was enacted after Section 46a and concluded the legislative intent of 46(d) was to limit an individual with a substantial interest in an employing unit from receiving benefits. Section 46a(1) operates as an exception to Section 46(a), not Section 46(d).

Digest Author: Board of Review (original digest here)
Digest Updated:
7/99

Hamilton v W A Foote Memorial Hospital – 4.18

Hamilton v W A Foote Memorial Hospital
Digest no. 4.18

Section 4850

Cite as: Hamilton v W A Foote Memorial Hosp, unpublished opinion of the Jackson Circuit Court, issued October 3, 1984 (Docket No. 84-33223-AE).

Appeal pending: No
Claimant: Joseph W. Hamilton
Employer: W. A. Foote Memorial Hospital
Docket no.: B83 09754 93402W
Date of decision: October 3, 1984

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CIRCUIT COURT HOLDING: Payments made to claimant after his separation and after he stopped performing services were severance pay, in light of the fact both parties characterized them as such and claimant had no right to payment in lieu of notice.

FACTS: The claimant worked for the employer as a controller. The employer requested the claimant’s resignation. After the claimant resigned the employer continued to pay the claimant on a bi-weekly basis for a six month period. Notably, both parties referred to the payments as “severance pay”. Upon filing for benefits the claimant asserted the monies received were remuneration under the Act and could be used to establish credit weeks.

DECISION: No remuneration was earned and no credit weeks could be established based on the payments in question.

RATIONALE: It is necessary to determine the understanding of the parties at the time of the separation. Here, both parties referred to the payment as severance pay. Further, the claimant did not perform any services during the six month period.

The court quoted from Bolta Products v Director of Employment Security, 356 Mass 684 (1970), : “A payment in lieu of dismissal notice may be defined as a payment made under the circumstances where the employing unit, not having given an advance notice of separation to an employee, and irrespective of the length of service to the employee, makes a payment to the employee equivalent to the wages which he could have earned had he been permitted to work during the period of notice. Severance pay, on the other hand, may be defined as a payment to an employee at the time of his separation in recognition and consideration of the past service he has performed for the employer and the amount is usually based on the number of years of service.”

Digest Author: Board of Review (original digest here)
Digest Updated:
6/91

Heckaman v H & R Block – 18.06

Heckaman v H & R Block
Digest no. 18.06

Section 62(a), 32(a)

Cite as: Heckaman v H&R Block, unpublished opinion of the Michigan Employment Security Board of Review, issued September 24, 1979 (Docket No. O/P B78 50339 RO1 61223).

Appeal pending: No
Claimant: Helen A. Heckaman
Employer: H & R Block
Docket no.: O/P B78 50339 RO1 61223
Date of decision: September 24, 1979

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BOARD OF REVIEW HOLDING: Where the employer submits new information concerning credit weeks after the monetary determination has become final and after the claimant has received benefits based on the prior information submitted by the employer, the claimant is not required to repay the benefits improperly paid.

FACTS: The employer submitted wage and credit week information to the Commission in early May, 1977. On May 12, 1977, the Commission issued determinations which established claimant’s benefit year and listed weeks of benefit entitlement chargeable to each base period employer. In subsequent weeks, claimant was paid the full amount of benefit entitlement. On August 8, 1977, the employer submitted information indicating claimant had two fewer credit weeks than had been reported originally in May. A redetermination issued November 15, 1977 held the claimant was required to repay benefits received for the period from July 3, 1977 through July 16, 1977.

DECISION: Pursuant to Section 32a(3) of the Act, the claimant is not required to pay restitution.

RATIONALE: “The Commission issued a determination on May 12, 1977 granting the claimant fifteen credit weeks with the employer. The employer did not protest the determination within the twenty-day protest period.

“Under these circumstances, the Board is of the opinion that restitution is not required pursuant to Section 32a(3) of the Act. Claimant did not receive the benefits as a result of non-disclosure of a material fact or administrative clerical error.”

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