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Wickey v Employment Security Commission 12.63

Section 29(1)(b)

MISCONDUCT, Standard of conduct, Constructive voluntary leaving

CITE AS: Wickey v Employment Security Commission, 369 Mich 487 (1963).

Appeal pending: No

Claimant: Robert Wickey

Employer: Chicago, Duluth, & Georgian Bay Transit Co

Docket No: B59 4276 24021

SUPREME COURT HOLDING: The doctrine of constructive voluntary leaving was rejected and claimant's failure to return to the ship was not disqualifying as a voluntary quit. However, claimant's actions were disqualifying misconduct.

FACTS: Claimant was night watchman aboard the SS South American, a passenger ship. While the ship was docked and Wickey was off duty, he went to shore and attended a movie, which resulted in his failure to return to the ship in time for her departure. Claimant traveled to the next port of call. He waited two days for the ship, which had been delayed, then went home. Two day's later he contacted the employer's office and was told he was discharged.

DECISION: The Court concluded Wickey's failure to return to the ship constituted disqualifying misconduct.

RATIONALE: Accepting claimant's testimony, he had a duty to return to the ship by 8:30, he disregarded this duty and did not return until 9:15. This was a wilful disregard of the employer's interest.

The Court noted the special responsibilities of the claimant's position as watchman, given the hazards to life and property from an undetected fire at sea. It quoted with approval the following reasoning of the referee: "There are times of course and different types of jobs that carry with them considerable more responsibility than others, for instance night work or fireman in a plant has exceeding responsibility that does the ordinary worker in the plant. What might be a violation of misconduct as far as a watchman is concerned might not be for another employee.... In determining whether or not an individual has committed an act of misconduct for which he is discharged we must take into consideration all of the facts and particularly the degree of responsibility the claimant owes to the employer and what his infraction of the rules means as far as hardship or trouble to the employer."



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