Gallagher v Montcalm County – 12.153

Gallagher v Montcalm County
Digest no. 12.153

Section 29(1)(b)

Cite as: Gallagher v Montcalm Co, unpublished opinion of the Court of Appeals, issued August 17, 1999 (Docket No. 203429).

Appeal pending: No
Claimant: Dale Gallagher
Employer: Montcalm County
Docket no.: 96-000348-AE
Date of decision: August 17, 1999

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COURT OF APPEALS HOLDING: A claimant’s indirect and belated efforts to notify his employer of his absences and failure to contact his employer thereafter, when occurring immediately following other disciplinary action, may constitute disqualifying misconduct.

FACTS: Claimant was employed as a building inspector for Employer. On December 3, 1993, Claimant received a 3-day suspension for falsification of time cards, failure to return to work after breaks, and other things. On his first day back after this suspension, Claimant suffered from a spasmodic colon causing him to defecate uncontrollably while on his way to work. After cleaning himself, he stopped into work only briefly before leaving without communicating with anyone. Claimant’s daughter-in-law contacted his supervisor on December 9 about Claimant’s illness, and Claimant mailed in his time card on December 10 with the word “sick” written on it. Claimant never personally contacted his supervisor regarding his absence; Claimant did not provide medical verification, nor did his doctor ever tell him that he could not return to work. Claimant was sent a letter on December 17 informing him that his failure to return to work, make personal contact, or provide written clarification of his absence is considered voluntary termination of his employment.

On appeal of Claimant’s initial determination of eligibility, the ALJ determined that failure to keep Employer adequately informed as to why he was absent constituted disqualifying misconduct. The Board of Review affirmed the ALJ decision on different grounds, finding misconduct instead in failure for Claimant to provide medical verification of the reason for his absence. On appeal, the Circuit Court disagreed with the Board of Review’s reasoning, but affirmed the decision as not contrary to law, agreeing with the ALJ that misconduct stemmed from Claimant’s failure to keep the employer adequately informed as to the reason for his absence.

DECISION: The Circuit Court decision is affirmed, Claimant is disqualified from benefits due to misconduct.

RATIONALE: Generally, tardiness or absence which results from circumstances outside the claimant’s control cannot be considered to be misconduct, which is willful or wanton disregard of the employer’s interest. However, here, the evidence shows that Claimant’s doctor did not tell him that he could not return to work. Also, when Claimant stopped at Employer’s building the same day of his medical condition, he did not bother to appraise anyone of his situation or leave any form of communication, nor did he personally contact Employer that day or any day subsequent. “An employer . . . has a right to expect that its employees will provide appropriate notification of their reasons for an absence from work. Coming on the heels of a three-day disciplinary suspension,” Claimant’s actions constitute an intentional and substantial disregard for his employer’s interests. The Circuit Court did not clearly err by affirming the Board of Review’s decision.

Digest Author: Jack Battaglia
Digest Updated: 8/14

Hoag v. Emro Marketing – 12.141

Hoag v. Emro Marketing
Digest No. 12.141

Section 421.29(1)(b)

Cite as: Hoag v Emro Mktg, unpublished opinion of the Maycomb County Circuit Court, issued April 9, 1999 (Docket No. 98-4783-AE).

Appeal pending: No
Claimant: Jeffery A. Hoag
Employer: Emro Marketing
Docket no.: 98-4783-AE
Date of decision: April 9, 1999

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HOLDING: Recurrences of negligent behavior do not per se suggest an intentional and substantial disregard of an employer’s interests and thus cannot per se establish misconduct.

FACTS: Appellant worked as an assistant manager for Emro Marketing and was discharged for cash drawer shortages. Appellant was initially determined to be not disqualified from receiving benefits. A further redetermination also found Appellant not disqualified. A hearing in front of an ALJ held the same

finding that the employer had not met its burden of proof in establishing appellant was discharged for reasons which would constitute misconduct. Further, the ALJ found that the appellant’s reporting of the shortages which allocated the blame to himself,  coupled with his signing of the respective warnings from his employer did not constitute misconduct. The Michigan Employment Security Board of Review, on appeal, found that the doctrine of res ipsa loquitur applies in this case. The Board concluded that if appellant did not commit theft, then he was obviously negligent. Further, the Board found misconduct was established by such reoccurrences as to show an intentional and substantial disregard of the employer’s interests or of the employee’ s duties and obligations to the employer

DECISION: The Court finds the Board acted contrary to law when it determined appellant’s recurrent negligence rose to the level of disqualifying misconduct.

RATIONALE: The court found that the Board’s decision was contrary to law in that the facts found did not constitute the legal definition of misconduct. This is because the Board’s use of res ipsa loquitur was in error. When determining if misconduct exists,  the legal question is not merely whether appellant was negligent, but whether that negligence rises to the level of disqualifying misconduct. Negligent recurrences do not per se suggest an intentional and substantial disregard of an employer’s interests, thus, they do not amount to misconduct. Here the employer bears the burden of proof in showing appellant’s recurrent negligence showed an intentional and substantial disregard of the employer’s interest.

Digest Author: Cydney Warburton, Michigan Law, Class of 2017
Digest Updated: 3/1/2016

City of Saginaw v Lindquist – 10.04

City of Saginaw v Lindquist
Digest no. 10.04

Section 29(1)(a)

Cite as: City of Saginaw v Lindquist, sub nom Parks v ESC, 427 Mich 224 (1986).

Appeal pending: No
Claimant: Nancy A. Lindquist
Employer: City of Saginaw
Docket no.: B81 06822 RO1 78455
Date of decision: December 26, 1986

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SUPREME COURT HOLDING: Failure to sufficiently comply with a condition of employment constitutes a voluntary leaving without good cause attributable to the employer.

FACTS: The claimant was working for the involved employer when she moved from Saginaw to Lupton with her husband and children. She lived in Saginaw a few days a week to be close to work but never intended the Saginaw address to be her permanent address. The claimant was terminated for failing to maintain a bona fide residence in the City of Saginaw as required by its Administrative Code.

DECISION: The claimant is disqualified pursuant to Section 29(1)(a) of the MES Act.

RATIONALE: Although the claimant did not resign because of the change in the location of her residence, her failure to sufficiently comply with the residency requirement, a condition of her employment, constituted a voluntary leaving without good cause attributable to the employer. The court was not persuaded that claimant’s attempts to comply with the requirement constituted wilful “misconduct connected with work.” The claimant is treated “as if she had done that which was presumably required under the circumstances — resigned because of the relocation of her permanent residence.”

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

Parks v MESC – 12.11

Parks v MESC
Digest no. 12.11

Section 29(1)(b)

Cite as: Parks v MESC, 427 Mich 224 (1986).

Appeal pending: No
Claimant: Anne B. Parks
Employer: Detroit Public Schools
Docket no.: B78 12258 66005
Date of decision: December 26, 1986

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SUPREME COURT HOLDING: An individual whose employment is terminated for failing to pay agency shop fees as required by the applicable collective bargaining agreement is disqualified from receiving unemployment benefits.

FACTS: Claimant’s employment with the Detroit Public Schools was terminated pursuant to the terms of a collective bargaining agreement because she failed to pay agency shop fees to the Detroit Federation of Teachers, the recognized bargaining agent for teachers and counselors. She objected to being “forced” to financially support an organization which conducted activities to which she was opposed.

DECISION: The claimant is disqualified from receiving unemployment benefits.

RATIONALE: A majority of the Court held the claimant is disqualified. A plurality, Justices Brickley and Archer and Chief Justice Williams, concluded the claimant should be disqualified for work-connected misconduct under Section 29(1)(b) as her failure to pay agency shop fees after receiving notice from the employer demonstrated an intentional disregard of the employer’s interests. Two justices, Boyle and Cavanaugh, concluded that the claimant, by failing to pay the shop fees as required by the agreement, had voluntarily left her work without good cause attributable to the employer.

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

Veteran’s Thrift Stores, Inc v Krause – 12.18

Veteran’s Thrift Stores, Inc v Krause
Digest no. 12.18

Section 29(1)(b)

Cite as: Veterans Thrift Stores, Inc v Krause, 146 Mich App 366 (1985).

Appeal pending: No
Claimant: Jayne A. Krause
Employer: Veterans Thrift Stores, Inc.
Docket no.: B83 15758 93527
Date of decision: October 8, 1985

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COURT OF APPEALS HOLDING: “Once the employer raises the issue of disqualification for misconduct under Section 29(1)(b) and submits evidence of a number of absences which, if unsupported by sufficient reasons, are so excessive as to constitute misconduct within the contemplation of this Section, then the burden is upon the claimant to provide a legitimate explanation for the absences.”

FACTS: During November 15, 1982, to March 2, 1983, claimant logged six absences due to personal illness and one related to the illness of a relative. With one exception, claimant failed to submit documentation supporting the claimed illnesses.

DECISION: The burden of proof is upon the claimant; therefore, the case is remanded to the Board of Review.

RATIONALE: “The relevant facts are entirely in the hands of the claimant and, for all practical purposes, cannot be discovered by the employer.”

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

Bowns v City of Port Huron – 12.12

Bowns v City of Port Huron
Digest no. 12.12

Section 29(1)(b)

Cite as: Bowns v City of Port Huron, 146 Mich App 69 (1985); lv den 424 Mich 899 (1986).

Appeal pending: No
Claimant: John Bowns
Employer: City of Port Huron
Docket no.: B82 09389 RO1 84805W
Date of decision: October 7, 1985

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COURT OF APPEALS HOLDING: A police officer’s off-duty conduct is sufficiently connected with his employment to justify denial of unemployment benefits.

FACTS: Claimant, a police officer/supervisor, was observed in a bar playing poker and conversing with a known “number’s man” and another person known to be a supplier of football game cards. The bar was being investigated by the Michigan State Police for sports betting, bookmaking and high stakes poker games. Claimant’s attendance at the bar was during his off-duty hours when he was not in uniform, nor carrying his weapon. The employer charged claimant with dereliction of duty for not reporting the activities at the bar.

DECISION: Claimant is disqualified for misconduct.

RATIONALE: Relying on Core v Traverse City, 89 Mich App 492 (1979), the court stated that illegal or improper conduct by employees in positions of public trust may undermine their ability to function in an official capacity and damage the prestige of the public employer. The court also adoptedCerceo v Darby, 3 PA Comm 174, 183 281 A2d 251, 255 (1971): ” … We demand from our law enforcement officers, and properly so, adherence to demanding standards which are higher than those applied to many other professions … in both an officer’s private and official lives … ”

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

Jones v Hackley Hospital – 12.14

Jones v Hackley Hospital
Digest no. 12.14

Section 29(1)(b)

Cite as: Jones v Hackley Hosp, Muskegon Circuit Court, Docket No. 83-17596 AE (October 2, 1984).

Appeal pending: No
Claimant: Willie Jones, Jr.
Employer: Hackley Hospital
Docket no.: B82 13563 RO1 86935W
Date of decision: October 2, 1984

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CIRCUIT COURT HOLDING: Inability to get to work because of involuntary incarceration does not constitute wilful or wanton misconduct connected with the work.

FACTS: The claimant worked for the employer as a janitor. He was discharged after being absent for three consecutive days without notice to the employer. The claimant was under the constraints of a work release program from the County Jail. His work release privileges were revoked as a result of a complaint filed by his wife. The revocation of the work release privileges prevented the claimant from reporting to work.

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: “To hold that plaintiff’s [claimant’s] involuntary incarceration constituted misconduct connected with his employment would result in this court agreeing that wilfulness was present, where subject was held against his will, an interesting but illogical proposition. It is only reasonable to conclude that the word ‘connected’ as used in the legislative act, was intended to make a distinction between misconduct with reference to an individual’s private life and misconduct arising during and related to his employment.”

The claimant lost his work release privileges under circumstances which might have been completely beyond his control. “The reason behind the revocation of his work release did not have the slightest connection with his employment.”

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