Section 29(9)
MISCONDUCT, Drug testing, Evidence, Hearsay
CITE AS: Banktson v Rowe International, Inc, Kent Circuit Court, No. 98-02888-AE (October 21, 1998)
Appeal pending: No
Claimant: Gordon A. Banktson
Employer: Rowe International, Inc.
Docket No. B97-03373-144189W
CIRCUIT COURT HOLDING: Where the record reflects a negative drug test (urine), simultaneous with a positive drug test (hair follicle), the employer did not prove the claimant should be disqualified.
FACTS: The employer required claimant to enter into a last chance agreement after an altercation. Claimant was subject to random drug testing. Two years later, after submitting urine and hair follicle samples, claimant tested negative on the urine test but positive for marijuana on the hair follicle test. Employer suspended claimant for six months. Employer did not have a witness from the testing laboratory at the Referee hearing, but the Referee admitted the test results. Employer’s human resources representative testified she was told that marijuana remains in hair longer than in urine.
DECISION: Claimant is not disqualified under Section 29(9).
RATIONALE: “It was not improper for the referee to have received into evidence and considered the testing laboratory’s report. While that report is hearsay, it is ‘evidence of a type commonly relied upon by reasonably prudent men in the conduct of the affairs,’ the standard of admissibility at administrative hearings.” Helm v University of Michigan, 147 Mich App 135, 138-139 (1985).
The record also included a simultaneous negative urine test. “That negative test constitutes… ‘substantial evidence,’ that marijuana use by claimant had not been adequately established.” “There being ‘substantial evidence’ on both sides of the issue, this Court cannot substitute its judgment for the Board of Review’s assessment of that conflicting evidence that misconduct was not proven.”
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