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Lovell v Bedell's Restaurant, Inc.12.16

Section 29(1)(b)

MISCONDUCT, Absence, Evidence, Illness

CITE AS: Lovell v Bedell's Restaurant, Inc., No. 74713 (Mich App March 20, 1985).

Appeal pending: No

Claimant: Olga Lovell

Employer: Bedell's Restaurant, Inc.

Docket No: B82 03183 RO1 83321

COURT OF APPEALS HOLDING: Plaintiff's failure to report for work may have been grounds for her dismissal, but it does not amount to misconduct.

FACTS: Plaintiff was a 15-year employee/waitress. Two weeks in advance she became aware that she was scheduled to work New Year's Eve along with the other waitresses. On December 30, claimant told the employer that she was ill. The employer made it clear to all waitresses that if they did not work New Year's Eve they would be fired. Claimant called in sick and was discharged. Claimant did not see a doctor.

DECISION: Claimant is not disqualified for misconduct.

RATIONALE: Relying on Linski v ESC, 358 Mich 239 (1959), the Court found that even though there was competent, material and substantial evidence on the whole record to support her refusal to work was motivated more by personal reasons that by illness, "it is clear that whether plaintiff's actions amounted to misconduct depends upon a finding that she was, in fact, not ill." The employer did not present evidence to show claimant was not ill. The employer has no right to depend upon a possibly ill employee working.


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