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Fresta v Miller 12.61

Section 29(1)(b)

MISCONDUCT, Burden of proof

CITE AS: Fresta v Miller, 7 Mich App 58 (1967).

Appeal pending: No

Claimant: Geraldine V. Miller

Employer: Rosario Fresta & Rosaria Fresta & Guiseppe Ravida and Rosina Ravida d/b/a Eastman's Cocktail Lounge

Docket No: B64 2541 RO 32857

COURT OF APPEALS HOLDING: The employer has the burden of proving that a claimant's discharge was for disqualifying misconduct.

FACTS: Claimant informed the employer she had injured her back and was not able to work in her position as a waitress. The claimant was subsequently seen elsewhere having a drink at a bar and going on a boat ride on days she had refused to work because of her back injury. Claimant was discharged.

DECISION: Claimant is not disqualified under Section 29(1)(b).

RATIONALE: Generally the burden of proof is on the party establishing eligibility for benefits. However, statutory misconduct is the employer's defense to claimant's claim for benefits and the facts to prove misconduct are within the knowledge and control of the employer. The employer has the burden to establish misconduct.



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