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MESC v Bourcki 12.17

Section 29(1)(b)

MISCONDUCT DISCHARGE, Assault and battery, Burden of proof, Corroborated testimony,

CITE AS: MESC v Bourcki, No. 81-140409 AE, Wayne Circuit Court (June 30, 1982).

Appeal pending: No

Claimant: Arthur R. Bourcki

Employer: North Detroit General Hospital

Docket No: B78 11915 65930

CIRCUIT COURT HOLDING: Where an individual is involved in an assault and battery and is not the aggressor, the separation is not disqualifying.

FACTS: "The claimant had been verbally harassed and abused by a fellow employee in a confrontation at the time-card rack as claimant was preparing to leave work and the fellow employee was reporting to work ... During the course of the confrontation, the fellow employee called the claimant an obscene name. The unrebutted testimony of a witness was that the fellow employee was abusive to the claimant because of the report claimant had written. In addition, the fellow employee, at the moment he spoke the abusive words to claimant, put up his hands in an aggressive gesture. The unrebutted testimony of the witness was that the fellow employee was the aggressor."

DECISION: The claimant is not disqualified for misconduct discharge.

RATIONALE: "Where as here, the putative basis for disqualification is the misconduct of the employee, the burden of proof lies with the employer or charging party, Fresta v Miller, 7 Mich App 58 (1967) ... The only res gestae witness to the above described event appearing at the hearing was a fellow employee, Beck. Beck testified that Bradley verbally abused the claimant to provoke an incident and called the claimant a vile name ... The witness stated that Bradley assumed an aggressive posture throughout and that there was nothing defensive about his conduct."

"Mindful of the remedial purposes of the Act and further mindful of the burden of proof in such proceedings, see for example, Diepenhorst v General Electric, 29 Mich App 651, 653 (1971) the determination of the Board of Review 'that claimant is not disqualified for assault and battery' is affirmed."


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