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Wilkins v Ice Cream Parlor 13.11

Section 29(1)(e)

REFUSAL OF WORK, Burden of proof, Suitable work, Unrefuted testimony, Unsworn written statement

CITE AS: Wilkins v Ice Cream Parlor, No. 8-250, St. Clair Circuit Court (April 19, 1978).

Appeal pending: No

Claimant: Ilene Wilkins

Employer: Ice Cream Parlor

Docket No: B75 10698 49416

CIRCUIT COURT HOLDING: The employer has the burden of proving a refusal of suitable work; an unsworn written statement will not meet this burden where the claimant testifies that the work is not suitable, and offers the testimony of a witness.

FACTS: The claimant was laid off after working on the first shift for some time. The employer later offered her a position on the second shift. The claimant declined. "Her testimony was that she refused this work because she was unable to perform it due to her health and that there was a difference in duties between the first shift and the second shift at the employer's Ice Cream Parlor." The only evidence from the employer was an unsworn written statement.

DECISION: The claimant is not disqualified for refusal of work.

RATIONALE: "The record reflects that no testimony was entered before the referee in behalf of defendant and that further testimony which was offered in behalf of plaintiff was not accepted based on witness's possible bias.

"It is the opinion of this Court that this case falls within the guidelines of Court of Appeals case Dann v Employment Security Commission, 38 Mich App 608 (1972)."

"Since in the instant case, defendant offered no testimony of any nature at the hearing and in fact did not even appear at the hearing, this Court fails to understand how he could meet the burden of proof as established by the Court of Appeals."



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