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Osborn v Superior Data Corp. 12.133

Section 29(1) (b), 38

MISCONDUCT, Definition of misconduct, Last straw doctrine, Failure to remedy, Appeals, Court of Appeals standard of review

CITE AS: Osborn v Superior Data Corp, No. 207997 (Mich App November 30, 1999)

Appeal pending: No

Claimant: Billy J. Osborn
Employer: Superior Data Corporation
Docket No. B96-04777-RO1-141178W

COURT OF APPEALS HOLDING: Claimant’s failure to come up with a solution for his attendance problem, despite repeated requests he do so, constituted a “last straw” and revealed a complete indifference to the employer’s interests.”

FACTS: Two months before the discharge, employer put claimant on notice that he had to correct his attendance. He had 28 attendance infractions in the previous three months, attributed to his children’s illnesses and a custody dispute. Employer asked claimant to develop a plan to remedy his absences; claimant refused to do so and was discharged.

DECISION: Claimant is disqualified under 29(1)(b).

RATIONALE: The issue of misconduct concerned claimant’s inability to develop a remedy for his absenteeism, not the absenteeism itself. The components of the definition of misconduct provided by Carter v ESC, 364 Mich 538, 541 (1961) are:

“Misconduct” . . . is limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found:

(1) in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or

(2) in carelessness or negligence of such degree or recurrence as to
    (a) manifest culpability, wrongful intent or evil design,
    (b)show an intentional and substantial disregard of
    (i) the employer’s interests, or
    (ii) the employee’s duties and obligations to his employer.

“[W]e read the Carter requirements in the disjunctive, . . . any single one of the descriptions of misconduct is sufficient to deny benefits. . .“


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