S T A T E   O F   M I C H I G A N 
                                                      
                                C O U R T   O F   A P E A L S 
 
 
 
STEVEN B. GUEBARA,                                                        UNPUBLISHED 
                                                                          September 27, 1996 
                Plaintiff­Appellant, 
 
v                                                                         No. 180648 
                                                                          LC No. 94-31295-AE 
MUSKEGON ALUMINUM FOUNDRY, 
 
                Defendant­Appellee, 
 
and 
 
MESC, 
 
                Appellee. 
 
 
Before:  Michael J. Kelly, P.J., and Hoekstra and E.A. Quinnell,*JJ. 
 
PER CURIAM. 
 
        Plaintiff was granted leave to appeal an order of the trial court that affirmed the decision of the 
Michigan Employment Security Commission Board of Review (MESC) to disqualify plaintiff from 
receiving unemployment benefits for misconduct connected with plaintiff's work, MCL 421.29; MSA 
17.531.  We reverse and remand. 

        Plaintiff was discharged from his employment at defendant foundry, pursuant to a clause in his 
employment contract, after being absent for three consecutive days without notifying the foundry.  The 
reason for plaintiff's absence was his incarceration in Muskegon County Jail as a result of his failure to 
post bond after his arrest for breaking and entering1.  After a hearing, an MESC referee found that 
because "there was no formal notice to the employer for three consecutive days as provided in the 
contract," plaintiff's actions amounted to misconduct connected with plaintiff's work, and disqualified 
plaintiff from receiving unemployment benefits. The referee's findings were adopted by the MESC 
Board of Review and affirmed by the circuit court. 

                Plaintiff argues that his conduct should have been evaluated objectively, and the fact that he 
violated his employment contract does not establish misconduct for the purpose of receiving 
unemployment benefits.  We agree. 

                This Court may only reverse a determination of the MESC Board of Review if it finds that the 
order is contrary to law or is not supported by competent, material, and substantial evidence on the 
record.  MCL 421.38; MSA 17.540; Tomei v General Motors Corp, 194 Mich App 180, 183-184; 
486 NW2d 100 (1992).  Wrongdoings which may justify termination of employment under a contract 
do not necessarily qualify as "misconduct" for purposes of the Employment Security Act.  Haganbuch 
v Plainwell Paper, 153 Mich App 834, 838; 396 NW2d 556 (1986).  An employee's behavior must 
be reviewed and evaluated objectively, independent from the terms of his employment contract, under 
the standard set forth by our Supreme Court in Carter v Employment Comm, 364 Mich 538, 541; 
111 NW2d 817 (1961).  Id.  By evaluating plaintiff's conduct on the basis of the employment contract, 
and not in light of Carter, the MESC's determination was contrary to law. 

                Frequent and unexcused absences over a short period of time may constitute misconduct as 
contemplated by the Act, but such a determination should be made by the MESC.  Veterans Thrift v 
Krause, 146 Mich App 366, 369 n 1; 379 NW2d 495 (1985).  On remand, it will be necessary for the 
MESC to determine, first of all, if plaintiff's absence from work, due to his incarceration and inability to 
post bond, was beyond his control.  (There are actually two considerations in this analysis: first, is 
incarceration an event beyond plaintiff's control, and second, is the fact that he could not post bond 
beyond his control.)  If the MESC answers affirmatively, then, as a matter of law, plaintiff's absences 
cannot support a finding of statutory misconduct.2  Washington v Amway Grand Plaza, 135 Mich 
App 652, 658; 354 NW2d 299 (1984).  If the MESC answers in the negative, then it must apply the 
standard set forth in Carter, supra at 541, for an objective determination of whether plaintiff's actions 
amounted to "misconduct"  

                Because of our conclusion above, we need not address plaintiff's other issue on appeal.  

                Reversed and remanded to the MESC for proceedings consistent with this opinion. 

                We do not retain jurisdiction. 

                                                                             /s/ Michael J. Kelly 
                                                                             /s/ Joel P. Hoekstra 
                                                                             /s/ Edward A. Quinnell 
                                                                 
1 Plaintiff testified before the referee that he was incarcerated for eight days and was ultimately put on 
probation and ordered into alcohol therapy.  His discharge was not predicated on criminal misconduct. 


 2 The referee improperly shifted the burden of proof to claimant to establish that his employer was 
notified during the three day period provided for in the employment contract.