Section 29(1)(b)
MISCONDUCT, Due process, Witnesses, Issues not raised waived
CITE AS: Royal Oak Name Plate Co. v Pielecha, unpublished memorandum opinion Court of Appeals, May 3, 1991, (No. 127547).
Appeal pending: No
Claimant: Bruce A. Pielecha
Employer: Royal Oak Name Plate Co
Docket No. B88-08501-109660
COURT OF APPEALS HOLDING: The employer was not denied a fair hearing when the claimant did not appear at the Referee hearing. The issue was not raised before the administrative tribunal and was waived.
FACTS: The claimant was discharged after six months of employment because he was slow, was tardy four or five times, his work quality was poor, he spent too much time talking to other employees and failed to fill out his time sheets. The employer offered the claimant another position at a lower wage rate which the claimant declined. The employer made notes of these incidents but the claimant was not issued any formal discipline, or written warnings. Only the employer appeared at the Referee hearing.
DECISION: The claimant is not disqualified for misconduct.
RATIONALE: The only issue properly before the Referee was misconduct. Therefore the burden of proof rested with the employer. That being the case, the employer "could not have been denied a fair hearing by Pielecha's absence." Further, the denial of due process issue was not raised below and was therefore waived. As to the misconduct issue, the employer only proved inefficiency by the claimant.
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