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Szypa v Kasler Electric Company 16.07

Section 33, 34

APPEALS, Notice of hearing, Waiver of adjournment, Issue before Board of Review, Admissible evidence

CITE AS: Szypa v Kasler Electric Co., 136 Mich App 116 (1984).

Appeal pending: No

Claimant: William Szypa

Employer: Kasler Electric Company

Docket No: B82 05600 83572

COURT OF APPEALS HOLDING: Where the notice of hearing limits itself to an issue, where neither party requests an adjournment for further development of additional issues, where the Board of Review does not remand for the taking of further testimony on such additional issues and, where a knowing and informed waiver of an adjournment of the referee hearing was not obtained from the parties, the decision of the referee must be limited to the issue contained in the notice of hearing.

FACTS: The Referee limited his decision to the issue contained in the notice of hearing which was voluntary leaving. Employer attempted to introduce evidence of claimant's misconduct. Employer appealed to the Board of Review. The appeal did not mention the misconduct discharge issue. The Board of Review decided that claimant was discharged for misconduct connected with work. The Circuit Court reversed the Board of Review because the decision was based upon an issue not properly before the Board.

DECISION: The Referee's decision was appropriate based upon the admissible evidence presented; and the decision of the Circuit Court reversing the Board of Review was correct.

RATIONALE: " ... if the notice of hearing does not place the parties on notice of an issue which is raised at the referee hearing the hearing shall either be adjourned for a reasonable time if requested by either party, or in any event, evidence shall not be taken on the issue nor a decision be made thereon unless a knowing and informed waiver of adjournment is obtained from the parties.

"The employer and the referee had the opportunity to adjourn the hearing to allow the employee to gather rebuttal evidence on the misconduct issue and they failed to do so. The Board had the authority to remand the case for further testimony and it failed to do so. The employee had the right to assume that the only issue before the referee was whether he had voluntarily quit ... "

EDITOR'S NOTE: Also see Rule 206 of the Rules of Practice, which has been revised since Szypa.

11/901, 6, d14:I

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