146 Mich. App. 366

VETERANS THRIFT STORES, INC v KRAUSE

Docket No. 82872.

Submitted July 3, 1985, at Detroit.

Decided October 8, 1985.

*367Prather & Harrington, P.C. (by James J. Harrington, III), for plaintiff.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Gunther C. Schwarze, Assistant Attorney General, for the Michigan Employment Security Commission.

Before: Beasley, P.J., and J. H. Gillis and M. J. Kelley, JJ.

Per Curiam.

Veterans Thrift Stores, Inc. appeals from an order of the circuit court dated January 8, 1985, affirming the decision of the Michigan Employment Security Commission Board of Review, pursuant to which appellee Jayne A. Krause was found to be entitled to unemployment benefits. The appeal is as of right.

On March 3, 1983, Krause was terminated from her employment with Veterans Thrift Stores, Inc., due to excessive absenteeism. During the period beginning November 15, 1982, and ending March 2, 1983, Krause logged six absences due to personal illness and one related to the illness of a relative. Other than one "disability certificate” which contained no information regarding a particular day lost due to illness nor any medical diagnosis, Krause failed to submit documentation supporting the claimed illnesses.

On appeal, appellant argues that the MESC Board of Review erred in failing to find appellee disqualified for unemployment benefits due to misconduct, pursuant to MCL 421.29(1)(b); MSA *36817.531(1)(b). Appellant does not dispute that excessive absenteeism due to illness is not "misconduct”, as contemplated by section 29(1)(b). Rather, it is argued that the lower court should have placed upon Krause the burden of proving that the absences were in fact occasioned by illness. We agree.

In Cooper v University of Michigan, 100 Mich App 99; 298 NW2d 677 (1980), this Court, in considering the burden of proof issue, stated that when the employee is to be disqualified for unemployment benefits due to the employer’s discharge for misconduct, the burden of proof falls upon the employer. This conclusion was justified on the ground that a discharge for misconduct involves a situation where "the conduct, knowledge, reasoning, and control of the employer is critical in order to determine whether disqualification is justified”. 100 Mich App 103. We agree that this observation is generally accurate. However, under the situation presented herein, the proposition does not hold true. Rather, the relevant facts are entirely in the hands of the former employee and, for all practical purposes, cannot be discovered by the employer. Thus, using the logic espoused in Cooper, we decline to hold that the burden of proof should be placed upon the appellant herein, the party least capable of shedding any light upon the issue presented by these facts. Therefore, once the employer raises the issue of disqualification for misconduct under section 29(1)(b) and submits evidence of a number of absences which, if unsupported by sufficient reasons, are so excessive as to constitute misconduct within the contemplation of this section, then the burden is upon the claimant to provide a legitimate explanation for the absences.

In so holding, we do not mean to say that the *369party seeking benefits must submit medical documentation to establish that the absences were caused by illness. Rather, the question is to be decided upon all the facts and circumstances, and will most often turn upon the credibility of the claimant. For example, should the facts of a particular case reveal a long-term pattern of Monday absences for which no explanation is offered, the claimant’s credibility, for obvious reasons, would presumably be called into question. Such a determination, however, is left to the trier of fact, i.e., the MESC referee initially and the Board of Review on appeal from the referee’s decision..

In placing the burden of proof upon the claimant under the facts presented in this case, we are not unmindful of the trend to construe narrowly the disqualification provisions of section 29, Smith v Employment Security Comm, 89 Mich App 212, 216; 280 NW2d 489 (1979), rev’d on other grounds 410 Mich 231; 301 NW2d 285 (1981), and of the remedial purpose of the act to provide temporary assistance to workers who become unemployed through no fault of their own. MCL 421.2; MSA 17.502. The key question in this case, however, is whether the claimant’s unemployment truly resulted through no fault of her own. That question can only be answered by placing the burden of proof upon her. The order of the circuit court is therefore reversed and the case remanded to the MESC for proceedings not inconsistent with this opinion.1

Reversed and remanded.

Veterans Thrift Stores, Inc. v. Krause
146 Mich. App. 366

Case Details

Name
Veterans Thrift Stores, Inc. v. Krause
Decision Date
Oct 8, 1985
Citations

146 Mich. App. 366

Jurisdiction
Michigan

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