Section 29(1)(i)
THEFT, Burden of proof, Intent
CITE AS: Livingston v Lac Vieux Desert Public, Gogebic Circuit Court, No. G-00-27-AV (January 26, 2001)
Appeal pending: No
Claimant: Bernard A. Livingston
Employer: Lac Vieux Desert Public Enterprise and Finance Committee
Docket No. B1999-08904-152992W
CIRCUIT COURT HOLDING: To meet its burden of proof under Section 29(1)(i), the employer must establish the elements of theft, including that the claimant had the “intent to steal.”
FACTS: Employer discharged claimant from his position as a security guard for allegedly stealing $20.00 of a $30.00 tip he received. A security camera showed the claimant received a $30.00 tip, pocketed $20.00 and put $10.00 in the tip jar. Claimant knew he was being recorded; the money in question was returned before he left the premises. Claimant had been objecting to employer’s policy on tips, specifically the failure of management to follow the tip policy. Employer did not appear at the Referee hearing. Claimant testified that he did not intend to keep the money or deprive the rightful owner of the money, rather it was his intent to incur disciplinary action to further object to management’s failure to follow the policy on distribution of tip monies.
DECISION: Claimant is not disqualified under 29(1)(i).
RATIONALE: The elements of “theft” must be analyzed in the light of facts of the case. Section 29(1)(i) refers to “theft.” In criminal law, civil law and common parlance the concept of theft or larceny “denotes not just the taking of property; but the taking of property fraudulently, with the intent to appropriate it to one’s own use or benefit, and depriving the owner of such use or benefit.” The definition of larceny includes ‘intent to steal.’ The absence of proof and findings on the required element of intent to steal is dispositive. The claimant’s intent was not to use the $20.00 for his own purposes, but to be caught; his intent was to protest the employer’s practices.
11/04