PROCEDURE/APPEALS, New Issue, Remand, Scope of Review
CITE AS: Rybski v Mt. Carmel Mercy Hospital Rybski v Mt. Carmel Mercy Hospital, No. 95927 (Mich App June 25, 1987).
Appeal pending: No
Claimant: Judith A. Rybski
Employer: Mt. Carmel Mercy Hospital
Docket No: B85 03717 99829
COURT OF APPEALS HOLDING: Where the redetermination and notice of hearing only referenced a voluntary leaving issue, where there was no informed waiver of adjournment to permit consideration of a misconduct issue, and where the Board did not remand, the circuit court erred in remanding for a new hearing on the additional issue.
FACTS: The redetermination issued by the MESC held claimant disqualified under Section 29(1)(a) for voluntary leaving. The notice of hearing only referenced Section 29(1)(a). The Referee held claimant not disqualified under Section 29(1)(a) and also not disqualified for misconduct under Section 29(1)(b). The Board reversed and held claimant disqualified for misconduct. Because the Board had not given the claimant an opportunity to present evidence on the misconduct issue, the circuit court remanded for further proceedings on the misconduct issue.
DECISION: Claimant is not disqualified for voluntary leaving. Remand for proceedings regarding the discharge issue is set aside.
RATIONALE: In reversing the circuit court's remand the Court of Appeals relied on Szypa v Kasler Electric Co., 136 Mich App 116; (1984), and found the only issue before the Referee was voluntary leaving.
"The circuit court in this case determined that, in the interest of justice, the matter should be remanded to the referee for a hearing on the issue of whether plaintiff was guilty of misconduct within the meaning of Section 29(1)(b). We are not persuaded that justice required remand in this case. ... The employer had an opportunity to request an adjournment of the referee hearing so that the issue of misconduct could be properly developed, or to ask that the Board of Review remand for further evidence. It did neither. Plaintiff was on notice that the sole issue was whether she was disqualified under Section 29(1)(a). Justice does not require that the employer be given yet another opportunity to present the misconduct issue."
3, 6, d14:NA