Chapter 14 DISQUALIFICATIONS - OTHER Section 29(1)(f)-(j)
Section 29(1)(h)
ASSAULT AND BATTERY, Dispute concerning back pay, Provocation by supervisor, Refusal of pass to first aid, Striking supervisor
CITE AS: Ashford v Motor Wheel, Inc. No. 74-9229 AE, Washtenaw Circuit Court (March 3, 1976).
Appeal pending: No
Claimant: William H Ashford
Employer: Motor Wheel, Inc.
Docket No: B74 493 45311
CIRCUIT COURT HOLDING: Provocation is not a defense to assault and battery.
FACTS: Two supervisors testified that the claimant struck one with his hand, and hit the other with his fist while jerking the victim by his necktie. The claimant testified that he was provoked by disputes regarding back pay and a pass to first aid.
DECISION: The claimant is disqualified under Section 29(1)(h) of the Act.
RATIONALE: "The MESC Appeal Board properly refused to remand this matter for more testimony concerning the issue of provocation because provocation, based upon the contentions of the appellant, is not a valid defense to assault. In Goucher v Jamieson, 124 Mich 21 (1900), the court upheld a judgement for the plaintiff in a suit to recover $65.00 for assault and battery. The defendant contended that he was provoked by the plaintiff's derogatory language to the defendant's sons, who appears to have picked some berries on the plaintiff's land. In reaching its decision, the court stated:
"The court instructed the jury that mere words, though insulting, do not justify an assault and battery, and that 'no assault is justified, unless by some assault performed by the other party.' ... The instructions given were, in our opinion, proper, under the circumstances of the case. 124 Mich at 22."
11/90
NA
Caldwell v Chrysler Corp 14.02
Section 29(1)(h)
ASSAULT AND BATTERY, Profanity by supervisor, Provocation, Reasonable person standard, Striking supervisor, Unreasonable anger
CITE AS: Caldwell v Chrysler Corp, No. 74-038-714 AE, Wayne Circuit Court (March 31, 1976).
Appeal pending: No
Claimant: Philip Caldwell
Employer: Chrysler Corp.
Docket No: B74 3703 45737
CIRCUIT COURT HOLDING: Provocation is not a defense to assault and battery.
FACTS: The claimant's testimony indicated that ... "Foreman Tomaszewski yelled profane words to claimant on four (4) different occasions in an effort to get claimant to work faster; that claimant then struck Foreman Tomaszewski with his fist, 'lost complete control' and started chasing the foreman and struck him again after he was 'on the ground.'"
DECISION: The claimant is disqualified under Section 29(1)(h) of the Act.
RATIONALE: "Provocation is not a defense to an assault, see People v McKay, 46 Mich 439 (1881); People v Pearl, 76 Mich 207 (1889)." "This Court also has reference to Welch v Weir, 32 Mich 77, p 86 (1875); 'The law in its application to this subject, takes full account of the infirmities of human nature, and holds no one to any impossible or unreasonable standard. But on the other hand, it cannot, for the safety of society, be tolerated that anyone can claim exception from responsibility by reason of excitement, when his anger is unreasonable, and results from a neglect to use ordinary self-control. No one has the right to allow his temper to become uncontrollable.'"
11/90
NA
Waite v Chrysler Corp 14.03
Section 29(1)(h)
ASSAULT AND BATTERY, Striking supervisor, Burden of proof, Preponderance of evidence, Standard of proof, Weight of the evidence
CITE AS: Waite v Chrysler Corp, No. 74-030301 AE, Wayne Circuit Court (November 14, 1975).
Appeal pending: No
Claimant: Lewis H. Waite
Employer: Chrysler Corp.
Docket No: B73 9378 45211
CIRCUIT COURT HOLDING: A disqualification for misconduct discharge or assault and battery does not require proof beyond a reasonable doubt, but it must "... be supported at least by a convincing preponderance of evidence."
FACTS: The claimant's supervisor testified, " ... that the claimant struck him with his palm over his left eye, causing his glasses to break." The claimant and his witness testified that no such incident occurred between the claimant and the supervisor.
DECISION: The claimant is not disqualified under Section 29(1) (h) of the Act.
RATIONALE: The Court adopted the decision of the Referee, who held: "After thoughtful consideration of the entire record in this appeal, the Referee concludes that there is a lack of sufficient, persuasive and dominant evidence to support a proper finding that the claimant was discharged under circumstances which would subject him to disqualification under either Subsection 29(1)(b) or Subsection 29(1)(h) of the Act. Since both of these provisions of the statute are in the nature of penalties, the Referee believes that there must be a high quality of proof in the record to warrant the application of either Subsection. By this, we do not mean to imply that the provisions of the Employment Security Act are subject to any of the criminal tests of the weight of evidence in that proofs must be 'beyond a reasonable doubt.' However, even in these proceedings, a disqualification should be supported at least by a convincing preponderance of evidence. The record, in this instance, lacks that quality."
11/90
NA
Old Farm Shores v Borghese 14.04
Section 29(1(j)
THEFT, Discovered after discharge, Causal connection
CITE AS: Old Farm Shores v Borghese, No. 61554 (Mich App March 28, 1983).
Appeal pending: No
Claimant: Sally Borghese
Employer: Old Farm Shores
Docket No: B79 03563 R01 68880
COURT OF APPEALS HOLDING: There must be a direct causal connection between the act complained of and the decision to discharge before disqualification can be imposed as a result of that act.
FACTS: Claimant managed an apartment complex. The employer became dissatisfied with claimant's performance and gave her notice her employment would be terminated after two weeks with pay. During the notice period the claimant allegedlyembezzled $5,100 from the employer. The employer did not become aware of the theft until after claimant's employment ended.
DECISION: Claimant is not disqualified under Section 29(1)(j) for theft in connection with her work.
RATIONALE: "Because the alleged embezzlement did not occur until after notice of termination and was not discovered until after the employment ended it played no part in the discharge decision. In Section 29(1) the legislature has enumerated those limited circumstances wherein payment of unemployment benefit is to be disallowed or restricted. ... The disqualification provisions are not to be construed as a means of punishment or penalty for alleged violations of either contractual or statutory provisions concerning the employer-employee relationship, Peaden v Employment Security Commission, (Smith, dissenting), 355 Mich 613, 638-639; 96 NW2d 281 (1959); nor should they be used as a means of punishment or penalty for alleged civil or criminal tort.
Should the legislature have deemed it proper, as a matter of policy, to preclude payment of unemployment benefits in all instances of employment-related theft, it could have so provided. Where the legislature has clearly spoken, however, it is not for the courts or the administrative agencies of this state to substitute their notions of preferable policy under the guise of interpretation."
Editors Note: Also see Section 29(1)(m) which was added to the MES Act subsequent to the adjudication of Borghese.
11/90
7, 14, d3:NA