Knox v. Right At Home Southeastern MI Inc. – 16.90

Knox v. Right At Home Southeastern MI Inc.
Digest No. 16.90

Section 421.29; Section 421.32a; Section 421.62; Section 421.33

Cite as: Knox v Right At Home Southeastern MI Inc, unpublished opinion of the Michigan Compensation Appellate Commission, issued July 29, 2016 (Docket No. 15-018792-247172W).

Appeal pending: No
Claimant: Teresa R. Knox
Employer: Right at Home Southeastern MI Inc.
Date of decision: July 29, 2016

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HOLDING: Under Section 421.32a, the Agency cannot reconsider a prior determination or redetermination more than one year from the date of mailing or personal service of the original determination on the disputed issue. All adjudications issued by the Agency that are contrary to this rule are void and must be set aside. All ALJ decisions made after the Agency improperly transferred over a case due to a violation of Section 421.32a are to be set aside as well.

FACTS: In February 2012, the Unemployment Insurance Agency (UIA) issued a Notice of Determination holding the claimant disqualified from receipt of unemployment insurance benefits under Section 421.29(1)(a). In June 2014, more than two years after the February 2012 Determination was issued, the Agency, on its own motion, reconsidered the Determination and issued a June 25, 2014 Redetermination. A March 2015 Redetermination held the claimant disqualified from receipt of unemployment insurance benefits under the voluntary leaving provisions of Section 421.29(1)(a) and held the claimant subject to restitution under Section 421.62(a). A November 2015 ALJ decision affirmed the March 2015 Redetermination. The claimant timely appealed to the Michigan Compensation Appellate Commission (MCAC) from the November 2015 ALJ decision.

DECISION: The November 2015 ALJ decision is set aside. The June 25, 2014 Redetermination and all subsequent Agency adjudications are set aside. The February 2012 Determination is a final ruling on this matter. Therefore Claimant is disqualified from receipt of benefits but Claimant is not subject to restitution.

RATIONALE:

Section 421.32a(2) provides that the Agency may, for good cause, reconsider a prior determination or redetermination after the 30 day period has expired, but that a reconsideration shall not be made unless the request is filed with the UIA, or reconsideration is initiated by the UIA with notice to the interested parties, within one year from the date of mailing or personal service of the original determination on the disputed issue.

The Michigan Supreme Court held in Roman Cleanser v Murphy, 386 Mich 698 (1972) that the doctrines of res judicata and collateral estoppel apply to an Agency ruling that has become “final” under Section 421.32a(2). As a result, the February 2012 Determination, which did not include any ruling on restitution under Section 421.62(a), is a final ruling. Therefore the June 25, 2014 Redetermination is void and must be set aside as the Agency had no legal authority to issue that ruling. All adjudications issued by the Agency after the June 25, 2014 Redetermination are void and must be set aside.

In addition, because the June 25, 2014 Redetermination was not in accordance with Section 421.32a, under Section 421.33 (“An appeal from a redetermination issued . . . in accordance with section 32a or a matter transferred for hearing and decision in accordance with section 32a shall be referred to the Michigan administrative hearing system for assignment to an administrative law judge”), the Agency was without authority to transfer the matter for hearing and assignment to an ALJ.

Digest author: Winne Chen, Michigan Law, Class of 2017
Digest updated: 10/31/2017

 

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

Latham v. Comcast Cablevision Corp. – 12.157

Latham v. Comcast Cablevision Corp.
Digest No. 12.157

Section 421.29(1)(b)

Cite as: Latham v Comcast Cablevision Corp, unpublished opinion of the Wayne County Circuit Court, issued August 28, 2013 (Docket No. 13-003859-AE).

Appeal pending: No
Claimant: Carmen Latham
Employer: Comcast Cablevision Corporation
Date of decision: August 28, 2013

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HOLDING: The Michigan Appellate Compensation Commission’s decision that Latham’s discharge for misconduct was contrary to law. Absent the provision of Comcast’s written policy on credit checks, there was not enough evidence to show that Latham’s actions rose to the level of misconduct.

FACTS: From April 3, 2006 until May 11, 2012, when she was discharged for misconduct, Latham worked for Comcast as an inbound sales executive. In March 2012, Comcast audited Latham’s work because she had not run credit checks on several accounts. On May 11, 2012 Latham was discharged. She then filed a claim for unemployment, but was ruled disqualified under the misconduct provisions of the act. According to the testimony of the employer at the ALJ hearing, credit checks are mandatory and the company’s policy does not allow employees discretion on whether to perform them. Latham was also found to have set up an account without Comcast’s permission, but believed she was following an appropriate course of action.

DECISION: The circuit court reversed the decision of the Michigan Appellate Compensation Commission and ruled that the claimant was not disqualified for benefits because of misconduct under Section 29(1)(b) of the act.

RATIONALE: Latham argued that under MRE 1002, the best evidence rule, Comcast was required to provide the written policy on credit checks rather than using testimonies of employees to demonstrate its contents. The circuit court agreed and stated that without this policy, it only had the statements of Comcast representatives to rely on to decide how much discretion Comcast employees are allowed. Without the written policy clearly defining Latham’s responsibilities, the circuit court found that her conduct amounted only to poor performance and not misconduct.

Digest Author: Alisa Hand, Michigan Law, Class of 2017
Digest Updated: 3/27/2016

Decess v. Central State Community Service – 12.137

Decess v. Central State Community Service
Digest No. 12.137

Section 421.29(1)(b)

Cite as: Decess v Central State Community Service, unpublished opinion of the Ingham County Circuit Court, issued December 14, 2010 (Docket No. 10-664-AE).

Appeal pending: No
Claimant: Tiffany L. Decess
Employer: Central State Community Service
Date of decision: December 14, 2010

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HOLDING: The Carter v Employment Security Comm, 364 Mich 538 (1961) requirement of “carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests” requires more than mere negligent or inadvertent behavior.

FACTS: Claimant was employed by Central State Community Service as a direct caregiver to six developmentally disabled residents from December 6, 2006 until she was fired on November 3, 2008. She was fired for allegedly leaving a resident unattended in a running van for 3-5 minutes while she went inside the home. Claimant testified that the resident was never out of her sight.

The ALJ found Claimant disqualified for misconduct. This decision was affirmed by the Board of Review.

DECISION: The Circuit Court reversed the Board of Review decision because it was contrary to law and not supported by competent, material, and substantial evidence on the whole record.

RATIONALE: There was uncontradicted Claimant testimony in the record that Claimant followed the practices that she had been trained on. The employer offered no evidence to the contrary. There was no evidence produced by the employer that could prove statutory misconduct, whether deliberate or negligent.

Following the Carter standard, the Circuit Court found that even if Claimant had been negligent, Carter requires the violation be more than negligent or inadvertent. There was no evidence in the record to support a finding that Claimant had acted with carelessness amounting to a disregard of her employer’s interests.

Finally, the Circuit Court relied on Razmus v Kirkhof Transformer, 137 Mich App 311 (1984) and Linski v Employment Security Commission, 358 Mich 239; 99 NW2d 795 (1966) to find that violating an employer’s rules is not, per se, misconduct within the meaning of the statute.

Digest author: Andrea M. Frailey, Michigan Law, Class of 2017
Digest updated: 10/31/2017

Myllylahti v. Full Force Diamond Drilling – 10.109

Myllylahti v. Full Force Diamond Drilling
Digest No. 10.109

Section 421.29(1)(a)

Cite as: Myllylahti v Full Force Diamond Drilling, unpublished opinion of the Ontonagon County Circuit Court, issued February 9, 2010 (Docket No. 09-71 AE).

Appeal pending: No
Claimant: Robert J. Myllylahti
Employer: Full Force Diamond Drilling USA, Inc.
Date of decision: February 9, 2010

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HOLDING: Where the working conditions imposed on a claimant by the employer are mentally and physically challenging enough to cause a reasonable, average or otherwise qualified worker to give up his employment, the claimant’s leaving was with good cause attributable to the employer.   

FACTS: Claimant began working for the employer on October 1, 2008 as a driller’s assistant working 13 hours per day, seven days per week. Claimant’s last day of work was October 22, 2008, when Claimant quit without prior notice to employer in the middle of his shift. Claimant indicated that the work was too hard and he could no longer do it. However, Claimant did not notify his employer of any work-related problems prior to quitting.

DECISION: The ALJ found that Claimant was disqualified for benefits. The MCAC affirmed. The Circuit Court reversed. Claimant is not disqualified for benefits.  

RATIONALE: To determine whether an employee left employment due to good cause attributable to the employer, the reasonable person standard is applied. “Under that standard, ‘good cause’ compelling an employee to terminate his or her employment should be found where the employer’s actions would cause a reasonable, average, or otherwise qualified worker to give up his or her employment.” Carswell v Share House, Inc, 151 Mich App 392, 396-397 (1986). The cumulative effect of 13 hours of heavy manual labor every day for twenty-two days straight, both mentally and physically, on a reasonable, average or otherwise qualified worker is born out by the record. Claimant’s physical inability to continue to do the job demanded of him by the employer, under working conditions imposed by the employer, would cause a reasonable, average or otherwise qualified worker to give up his employment, as well. This constitutes good cause attributable to the employer and not a personal reason attributable to claimant.

Digest author: Cydney Warburton, Michigan Law, Class of 2017
Digest updated: 10/31/2017

Winfied Machine Service LLC v. UIA – 14.19

Winfied Machine Service LLC v. UIA
Digest No. 14.19

Section 429.21(1)(i)

Cite as: Winfied Machine Services, LLC v Havens, unpublished opinion of the Macomb Circuit Court, issued July 13, 2009 (Docket No. 2009-­0342-­AE).

Appeal pending: No
Claimant: Dennis Havens
Employer: Winfied Machine Services LLC
Date of decision: July 13, 2009

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HOLDING: Because the Michigan Employment Security Act does not define “theft” for the purposes of MCL 429.21(1)(i), a claimant cannot be disqualified from receiving benefits when “theft” is interpreted as requiring felonious intent and the employer fails to establish that the claimant acted with felonious intent.

FACTS: Claimant was fired after his employer discovered that he had sold a hydraulic pump allegedly stolen from the employer. Testimony on behalf of the Claimant suggested that a third party had given Claimant the pump, and that Claimant was unaware of any prior owners.  Neither the ALJ nor the Michigan Employment Security Board of Review could determine true ownership of the pump. Since ownership of the pump was unclear, the Board found that the employer failed to meet its burden of demonstrating Claimant’s felonious intent to deprive the employer of its alleged property.

DECISION: The court declined to reverse the decision of the Michigan Employment Security Board of Review because it was supported by “competent, material and substantial evidence on the whole record, and clearly conformed to the law.”

RATIONALE: Because the Michigan Employment Security Act does not define “theft,” it is not contrary to the law to determine that an element of theft is felonious intent.  Under such an interpretation, a claimant cannot be disqualified from receiving benefits under MCL 429.21(1)(i) when the Employer fails to establish felonious intent.

Digest author: James Mestichelli, Michigan Law, Class of 2017
Digest updated: 3/29/2016

Physicians Health Plan of Mid Michigan v. Chapman – 12.149

Physicians Health Plan of Mid Michigan v. Chapman
Digest No. 12.149

Section 421.29(1)(b)

Cite as: Physicians Health Plan v Chapman, unpublished opinion of the Ingham County Circuit Court, issued December 16, 2008 (Docket No. 08-628-AE).

Appeal pending: No
Claimant: Shanika Chapman
Employer: Physicians Health Plan of Mid Michigan
Date of decision: December 16, 2008

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HOLDING: It is misconduct as a matter of law when an insurance company employee committs insurance fraud in violation of her employer’s human resources manual.

FACTS: Claimant worked in customer service for the employer insurance company; her job duties included assessing claims and administering customers’ financial obligations. Claimant was fired after she revealed to her employer that she committed criminal fraud by filing a false claim against her car insurance company.

At the ALJ hearing, the employer cited its H.R. policy manual as permitting employee firings for criminal activity, which could harm the employer’s public image. But, the ALJ decided Claimant was still not disqualified from receiving benefits for misconduct. The Board of Review affirmed, citing the mandate to interpret the meaning of misconduct narrowly to avoid disqualification.

DECISION: Reversed. The Circuit Court determined that claimant’s conduct constituted misconduct connected with her work, disqualifying her from benefits.

RATIONALE: The Circuit Court surveyed various cases regarding whether off-duty conduct may be sufficiently connected to a claimant’s work to constitute misconduct. Ultimately, it concluded that, as a matter of law, the filing of a false insurance claim constituted a wanton disregard of the employer’s interests and standards of behavior. This behavior clouded Claimant’s ability to fulfill her job duties, particularly given her unique financial responsibilities; sufficiently involved the employer’s interests; and adversely affected the employer’s behavioral expectations of employees.

Digest author: Austin L. Webbert, Michigan Law, Class of 2017
Digest updated: 10-31-2017