Riccardi v Oakland General Health Systems – 12.154

Riccardi v Oakland General Health Systems
Digest no. 12.154

Section 29(1)(b)

Cite as: Riccardi v Oakland Gen Health Systems, unpublished per curiam opinion of the Court of Appeals, issued January 10, 2006 (Docket No. 256164).

Appeal pending: No
Claimant: Carol Ann Riccardi
Employer: Oakland General Health Systems / St. John Oakland Hospital
Docket no.: 04-050903-AE
Date of decision: January 10, 2006

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COURT OF APPEALS HOLDING: A finding of statutory misconduct due to excessive absenteeism or tardiness cannot be made if there is no evidence that any of the absences were not for good cause.

FACTS: Claimant’s accumulation of absences for various reasons led to her termination under Employer’s “no-fault” attendance system which set forth a schedule detailing how escalating amounts of absenteeism would lead to increasingly severe penalties. The majority of the absences were documented as due to illness, doctor’s visits, car trouble, or problems at home. Claimant was initially granted benefits under the reasoning that she was not discharged for a deliberate disregard of her employer’s interests. This determination was overruled by the ALJ, and affirmed by the Board of Review and the Circuit Court, finding that Claimant had committed disqualifying misconduct under the reasoning that her absences were excessive, she was aware of the attendance policy that could lead to dismissal, and she “made very little effort” to correct her attendance problem.

DECISION: The orders of the below tribunals are reversed, and the initial determination finding Claimant entitled to benefits is reinstated.

RATIONALE: Absenteeism and tardiness for reasons that are not outside a claimant’s control may constitute statutory misconduct. However, misconduct requires a determination that the claimant’s attendance issues were without good cause, and it is the employer’s burden to show this.

Here, no below tribunal made any factual findings discrediting Claimant’s explanations for her absences, rather only finding her disqualified due to the excessive nature of her absences and taking no remedial action despite knowing that her job was in jeopardy. Without a finding that her absences were not for good cause, the burden required to establish disqualifying misconduct was not met. The below tribunals erred in finding statutory misconduct.

Digest Author: Jack Battaglia
Digest Updated: 9/14

Lakeshore Public Academy v Scribner – 10.91

Lakeshore Public Academy v Scribner
Digest no. 10.91

Section 29(1) (a)

Cite as: Lakeshore Pub Academy v Scribner, unpublished opinion of the Oceana Circuit Court, issued May 10, 2004, (Docket No. 03-004110-AE).

Appeal pending: No
Claimant: Patricia A. Scribner
Employer: Lakeshore Public Academy
Docket no.: B2003-06865-RO1-170206
Date of decision: May 10, 2004

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CIRCUIT COURT HOLDING: Claimant established good cause for leaving. Employer did not complete the process of handling the claimant’s complaint by communicating to her that it was investigated and what action would or would not be taken in response. The claimant reasonably concluded the employer was unable or unwilling to discipline a co-worker who violated employer’s rule against threatening behavior.

FACTS: Claimant worked as a teacher. Another teacher and his wife, confronted claimant in her classroom regarding her discipline of their child on the previous day. Claimant testified the other teacher put his finger in her face, glared at her, and made intimidating comments. This happened as students were entering the classroom. Claimant reported this incident to the employer, and indicated she could not work under those conditions. Employer had a policy prohibiting threatening behavior toward staff which provided that if a threat occurred, the perpetrator would be disciplined. Employer’s witness investigated the incident, but could not reconcile differing statements from claimant and the other teacher, so the teacher was not disciplined. After not hearing anything more from the administration, claimant resigned a couple weeks later.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: “The ALJ’s decision turned on the failure of the Academy to complete the normal and expected handling of an employee’s grievance by communicating to the employee the results of the investigation and what, if any, action would be taken in response to the complaint.” It is the manner in which employer handled the complaint, not the failure to impose discipline, that leads to a finding of non-disqualification.

Digest Author: Board of Review (original digest here)
Digest Updated: 
11/04

Human Capability Corp v Carson – 10.96

Human Capability Corp v Carson
Digest no. 10.96

Section 29(1)(a)

Cite as: Human Capability Corp v Carson, unpublished opinion of the Wayne Circuit Court, issued April 6, 2004, (Docket No. 03-331656-AE).

Appeal pending: No
Claimant: Barbara D. Carson
Employer: Human Capability Corporation
Docket no.: B2003-02940-169363
Date of decision: April 6, 2004

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CIRCUIT COURT HOLDING: Where the employer unilaterally changed the terms and conditions of employment by altering the employee handbook to include non-competition and prohibition of outside employment provisions, the claimant had good cause for voluntary leaving.

FACTS: In January 2002, employer updated the policies contained in its 1998 employee handbook. The 2002 employee handbook contained a non-competition provision and prohibited outside employment. The claimant refused to sign and was separated from employment. The 1998 employee handbook prohibited outside work on employer’s time, and lacked an express provision barring work with a competitor after separating from employer’s employ.

DECISION: Claimant is not disqualified for voluntary leaving.

RATIONALE: The employer did not dispute that claimant left work voluntarily. The employer asserted claimant lacked good cause for leaving because claimant was an at-will employee, who lacked an employment contract or a legitimate expectation that employer would not alter the terms and conditions or employment. The court held that employer’s argument was misplaced – that claimant’s employment status and employer’s right to alter the terms and conditions of work would be pertinent if the enforceability of a common-law employment contract were at issue. Toussaint v Blue Cross & Blue Shield of Michigan, 408 Mich 579 (1980). The court found that Toussaint and its progeny do not govern administrative proceedings when the issue is whether the claimant left with good cause attributable to employer under Section 29(1)(a) of the Act.

The addition of the moonlighting prohibition and anti-compete clause were a substantial and material change in the terms of employment.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/04

Pinecrest Custom Homes v Meines – 16.70

Pinecrest Custom Homes v Meines
Digest no. 16.70

Section 32a

Cite as: Pinecrest Custom Homes v Meines, unpublished opinion of the Kent Circuit Court, issued October 8, 2002 (Docket No. 02-03823-AE).

Appeal pending: No
Claimant: Janis Meines
Employer: Pinecrest Custom Homes
Docket no.: B2001-14696-RM1-161795
Date of decision: October 8, 2002

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CIRCUIT COURT HOLDING: Detrimental reliance on incorrect advice from a representative of the Agency constitutes “good cause” for filing a late protest.

FACTS: Claimant quit her job due to abusive conduct by the husband of the owner. Claimant filed for benefits. A determination held her disqualified for benefits under Section 29(1)(a). Claimant telephoned the claims examiner who issued the determination to ask what would be required to reverse the determination. Claimant testified the claims examiner told her (incorrectly) she would have to “prove with medical records or police reports that she had been ‘physically injured.’” Claimant did not file a timely protest of the determination because she did not have such evidence. A few weeks later, claimant met the person who had replaced her. That person also quit due to abusive conduct from employer’s husband and was seeking benefits. She told claimant other employees had quit for the same reason and had received benefits. Claimant then filed an untimely protest.

DECISION: The claimant established good cause for her late protest.

RATIONALE: “What justifies considering the late filing of a new, additional or reopened claim seems intuitively to justify considering the late protest of the initial determination of a claim.” That definition of “good cause” is “a justifiable reason, determined in accordance with the standard of conduct expected of an individual acting as a reasonable person in light of all the circumstances, that prevented a timely filing or reporting to file….” The statement of a “representative of the Unemployment Agency that a protest could succeed only with evidence that one does not have compels the conclusion that there is no point to a protest; reasonable people do not do the futile. [I]t is not reasonable to expect lay-people to ignore whom the government holds out to be an expert.” Claimant “had good cause for not protesting until she learned that she had been misled.”

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Pool v R S Leasing, Inc – 16.69

Pool v R S Leasing, Inc
Digest no. 16.69

Section 32a

Cite as: Pool v R S Leasing, Inc, unpublished opinion of the Wayne Circuit Court, issued May 3, 2002, (Docket No. 01-138871-AE).

Appeal pending: No
Claimant: Brinda J. Pool
Employer: R. S. Leasing, Inc.
Docket no.: B2001-08251-159781W
Date of decision: May 3, 2002

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CIRCUIT COURT HOLDING: Where claimant’s late protest was attributable to her parents’ medical problems, good cause for reconsideration was established.

FACTS: On January 2, 2001 claimant received a determination holding her disqualified. The Agency received claimant’s protest on March 12, 2001. The Agency requested an explanation for the untimely protest. Claimant disclosed that she had been out of town because her parents were ill. The Agency denied her request for redetermination. Claimant testified that after she received the determination, she left town to care for her parents, both seriously ill. She thought she would return before the 30-day appeal period expired, but did not return until February 28, 2001. She mailed her protest after the 30-day appeal period expired. She did not mail the protest before leaving town because her main concern was her parents’ health. The Board found she failed to show good cause for her late protest.

DECISION: The claimant demonstrated good cause for her late appeal of the Agency’s determination.

RATIONALE: The plain language of Rule 270(1) provides that the “Rule’s [specific] list of grounds for finding good cause is not exclusive,” and Rule 210(2)(e)(v) provides that “[g]ood cause for late filing of a new, additional, or reopened claim” includes “[p]ersonal physical incapacity or the physical incapacity or death of a relative . . ..” Reading the two Rules together leads to the conclusion good cause was established.

Digest Author: Board of Review (original digest here)
Digest Updated:
11/04

Simpson v MBS Commerical Printers, Inc – 10.97

Simpson v MBS Commerical Printers, Inc
Digest no. 10.97

Section 29(1)(a)

Cite as: Simpson v MBS Commercial Printers, Inc, unpublished opinion of the Bay Circuit Court, issued August 25, 2000 (Docket No. 99-3129-AE-B).

Appeal pending: No
Claimant: Darren H. Simpson
Employer: MBS Commercial Printers, Inc.
Docket no.: B98-00846-148280W
Date of decision: August 25, 2000

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CIRCUIT COURT HOLDING: A death threat made by employer, coupled with past abuse from the employer, and the employee’s reasonable belief that employer was capable of acting on the threat, constitutes good cause attributable to the employer for voluntary leaving.

FACTS: On the claimant’s last day, he had an argument with the owner, which the owner initiated. Claimant testified the owner threatened to kill him, which the employer denied. The ALJ failed to make a credibility finding. Claimant had difficulty with the owner in the past – physical and verbal abuse by the owner, and a physical assault by the owner’s brother. The owner owned guns; claimant believed he would carry out the death threat and later filed a police report. The claimant worked the balance of his shift before leaving.

DECISION: The claimant is not disqualified from receiving benefits.

RATIONALE: Claimant finished his shift on Friday, and notified employer that he quit the following Monday. Instead of provoking employer in an environment employer controlled, claimant opted to notify employer of his leaving at a later time, allowing for a period of “cooling down.” Claimant chose the prudent course, which in no way diminishes the seriousness of employer’s threat. Good cause exists where the circumstances which prompted the claimant’s departure would have caused an average, reasonable, and otherwise qualified worker to leave. Carswell v Share House, Inc, 151 Mich App 392 (1986). The employer made a death threat. Employees should not have to labor under the threat of murder.

Digest Author:  Board of Review (original digest here)
Digest Updated: 11/04

Kirby Grill Management, Inc v MESC – 2.21

Kirby Grill Management, Inc v MESC
Digest no. 2.21

Section 32a

Cite as: Kirby Grill Mgt, Inc v MESC, unpublished per curiam Court of Appeals, issued July 28, 1995 (Docket No. 166288).

Appeal pending: No
Claimant: N/A
Employer: Kirby Grill Management, Inc.
Docket no.: L91-00461-2192
Date of decision: July 28, 1995

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COURT OF APPEALS HOLDING: Good cause for late protest of a determination of successorship may be found where the employer submitted a revised registration report containing additional or corrected information regarding the percentage of assets acquired.

FACTS: In May, 1990 employer submitted a Liability Registration Report in which it indicated it had acquired 100% of predecessor Kings Manor. Employer was mailed a Notice of Successorship on June 22, 1990, which indicated that employer had purchased more than 75% of the assets of its predecessor. This was not protested until September, 1990. Request for redetermination denied on October 5, 1990, because employer failed to protest within thirty days or establish good cause for late protest. Employer submitted revised registration report showing it only acquired 15% of Kings Manor instead of the 100% in the original registration. Employer’s position is that submission of revised registration report meets good cause standard set forth in Unemployment Agency Administrative Rule 270(1)(b).

DECISION: Reversed and remanded for determination of whether good cause exists for reconsideration under Rule 270(1)(b).

RATIONALE: Under the statute, the Agency is authorized to redetermine a prior successorship determination for any “good cause” shown. The focus of a good cause inquiry is not limited to whether the employer could show good cause for not filing its protest within thirty days. Limiting the Agency’s discretion to deciding if there is good cause for untimely filing is overly technical and bureaucratic especially as Rule 270 expressly indicates good cause can be established on the basis of “additional or corrected information.” “That is, the additional or corrected information can provide the necessary good cause to reconsider the successorship determination and, hence, the all-important rate determination.”

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