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Essenmacher v Midwest Rubber Division 12.114

Section 49(1)(b)

MISCONDUCT, Burden of proof, Claimant testimony

CITE AS: Essenmacher v Midwest Rubber Division, Sanilac Circuit Court, No. 90-19139-AA (May 9, 1991).

Appeal pending: No

Claimant: Vernon Essenmacher

Employer: Midwest Rubber Division

Docket No. B89-00780-R01-111782W

CIRCUIT COURT HOLDING: Misconduct can be established by the claimant's own testimony.

FACTS: Claimant was told by his foreman to perform a specific operation during his slack time. This assignment was consistent with the claimant's classification and had been routinely performed in the past by the claimant. Later in the shift the claimant stopped to talk with another person and was told by his foreman to perform the operation. The claimant refused because he believed others were equally available to perform the operation. The claimant was told to punch out, which he did. The claimant did not return to work thereafter and the employer had no further contact with the claimant.

The employer witness asserted the claimant was only sent home to cool off. As such he was not fired, but rather quit when he did not return. The claimant asserted he was fired when told to punch out. The employer witness, operating under the theory this was a voluntary leaving, offered no evidence of claimant misconduct; however, the claimant testified he refused to perform the operation in question.

DECISION: The claimant is disqualified for misconduct.

RATIONALE: The proof of the claimant's misconduct can come from the claimant's testimony. The court noted under Miller v F.W.Woolworth Co., 359 Mich 342 (1960), the Michigan Rules of Evidence apply at MESC hearings. The claimant's testimony that he refused to perform an assignment can provide the competent evidence necessary to find the misconduct.


13, 14: N/A

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