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Fleet Engineers, Inc v Smith 12.82

Section 29(1)(b)

MISCONDUCT, Condonation, After-acquired evidence

CITE AS: Fleet Engineers, Inc v Smith, Muskegon Circuit Court, Docket No. 95-32894-AE (December 21, 1995)

Appeal pending: No

Claimant: Kirk Smith

Employer: Fleet Engineers

Docket No. B92-27669-RO1-125153

CIRCUIT COURT HOLDING: When the employer by its own conduct over a substantial period of time revealed it had no interest in preventing the acts which caused claimant's discharge, those acts cannot form the basis of a finding of misconduct. The "after-acquired" evidence rule is contrary to the language of Section 29(1)(b) since the employee was obviously not discharged for the complained of act.

FACTS: The employer discharged the claimant for allegedly intentionally ramming the forklift he was operating into another moving forklift. The record showed accidental and intentional bumping of forklifts by other forklifts "was a common occurrence, was known by supervisors to occur, and was considered so insignificant to plant safety that it was ignored by supervisors." The employer alleged subsequent to the Referee decision that it discovered the claimant was wrongfully selling company scrap and kept sale proceeds. The Referee denied the employer's request to put the "after-acquired" evidence on the record.

DECISION: The claimant is not disqualified for benefits under Section 29(1)(b) of the Michigan Employment Security Act.

RATIONALE: The claimant's "act of bumping the forklift could hardly be construed as constituting `misconduct' as defined in Carter v Employment Security Commission, 364 Mich 538, 541 (1961)." The claimant's conduct could not constitute `wilful and wanton disregard of an employer's interests' when the employer "by its conduct over a substantial period of time revealed that it had no interest in preventing lift trucks from occasionally bumping each other, either intentionally or accidentally." The court declined to apply the "after-acquired" evidence rule to the "sphere of unemployment compensation benefits cases" because "a judicial adoption of such a rule would be contrary to the plain language" of the statute which provides that "an individual shall be disqualified for benefits in cases in which the individual was discharged for misconduct." Since the claimant was not discharged for the "misconduct of embezzlement" the alleged embezzlement "cannot be a basis for a denial of unemployment benefits."


12, 24: B

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