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Rebuilding Services, Inc v Lewandowski 12.106

Section 29(1)(b)

MISCONDUCT, Burden of proof, Agency proof

CITE AS: Rebuilding Services, Inc v Lewandowski, Tuscola Circuit Court No. D96-1550-AE (September 18, 1997).

Appeal pending: No

Claimant: Kenneth Lewandowski

Employer: Rebuilding Services, Inc.

Docket No. B91-16079-RO1-122293

CIRCUIT COURT HOLDING: Where a primary employer contracts with a secondary employer, and the secondary employer discharges the claimant, the primary employer must show whether its employment relationship with the claimant ended.

FACTS: The claimant worked for the employer, Rebuilding Services. Rebuilding Services was the primary employer, and purportedly had a contractual relationship with Wilkie Bros., Inc., the secondary employer. Rebuilding Services assigned the claimant to work for Wilkie Bros. The appeal to the Referee was filed by someone from Wilkie Bros. and only witnesses from Wilkie Bros. appeared at the Referee hearing. No Wilkie Bros. witness submitted evidence of an agency relationship with Rebuilding Services. The claimant contended he was discharged after being absent due to illness. Wilkie Bros. alternately contended the claimant quit after obtaining new employment or was treated as a quit for unexcused absences.

DECISION: The claimant is not disqualified for benefits under Section 29(1)(b).

RATIONALE: An agent cannot self-proclaim its agency. Wilkie Bros. did not submit an appearance to act on behalf of Rebuilding Services, and did not offer any documentary evidence establishing a contractual relationship between the two. Moreover, the employer's appeal letter to the Board indicated that while Wilkie Bros. could discharge a contracted employee, Rebuilding Services could reassign or release the employee. Thus simply because there was a separation from Wilkie Bros. does not mean there was a separation from Rebuilding Services. The Wilkie Bros. witnesses could not testify as to what transpired between the claimant and Rebuilding Services. The employer did not meet its burden of proof.


22, 21: B

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