Friday, December 30, 2011

NEW YORK UNEMPLOYMENT INSURANCE - HEARINGS AND APPEALS - MISCONDUCT OR SEPARATION RE: VACATIONS - CASE NO. 8 & 9

This is the basic Appeal Board case dealing with the issue of cancelled vacations:

"Index 1730-2
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

SEPTEMBER 4, 1958

INTERPRETATION SERVICE - BENEFIT CLAIMS
VOLUNTARY LEAVING
Personal Affairs
Appeal Board Case Number 65,606-58


REFUSAL TO ABANDON TRIP ABROAD, AFTER GRANTED LEAVE HAD BEEN CANCELLED

No disqualification for a voluntary leaving of employment applies to a claimant whose employment is terminated upon refusal to cancel a vacation trip abroad when a leave for this purpose had been granted and when in reliance thereon, he had incurred expenditures and would have suffered a substantial financial loss by the cancellation of the trip.

Referee's Decision: The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days, effective May 19, 1958, on the ground that she voluntarily left her employment without good cause is sustained.

Appealed By: Claimant.

Findings of Fact: Claimant was employed as a file supervisor. Her sister planned and arranged to make a trip abroad. She booked passage on airplanes which were to leave April 21, 1958 and return May 18, 1958 respectively. Due to the sudden illness of her sister, claimant was offered the opportunity to make the trip in her stead. Claimant applied to her supervisor for a leave of absence in order to make the trip. Such leave was granted upon condition that she relinquishes her summer vacation. This was agreeable to claimant.

Relying upon the granting of her leave of absence, claimant made the necessary preparations. She incurred substantial expenses, obtained a passport and submitted to vaccinations. Four days prior to the scheduled trip, claimant was informed that her leave of absence was cancelled because it was granted through error on the part of her supervisor. Claimant was then informed that if she made the trip it would be at the risk of her job. Claimant deemed it too late to rescind the trip arrangements and had no alternative but to submit the requested resignation. Had claimant cancelled her reservation, a substantial loss would have been suffered.

Claimant refiled for benefits effective May 19, 1958. The local office issued an initial determination disqualifying her from receiving benefits for 42 consecutive calendar days effective May 19, 1958, on the ground that she voluntarily left her employment without good cause.

Appeal Board Opinion and Decision: The referee, in sustaining the initial determination concluded that claimant left her employment without good cause because it was based upon personal considerations. We do not agree with this conclusion.

The trip in question involved the expenditure of a considerable sum of money. Claimant arranged to make the trip only after she had been granted a leave of absence. Claimant, in reliance thereon, proceeded to make the necessary preparations. Her demanded resignation, which followed her refusal to abandon the trip, was submitted by claimant not of her own free choice, but at the request of her supervisor.

We hold that under all the circumstances herein, claimant did not voluntarily leave her job. Virtually, she was discharged. She did not provoke her discharge.

The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive calendar days effective May 19, 1958, on the ground that she voluntarily left her employment is overruled. The decision of the referee is reversed. (August 22, 1958)

COMMENTS

In a previous case dealing with a claimant who left his employment to make a trip abroad (A-750-1358), the Appeal Board held that the voluntary leaving was without good cause. There are several factors which distinguish that case from the one here reported. In the earlier case, the employer did not grant a leave of absence and the claimant was made aware that he assumed the risk of being re-hired upon his return. Also, and perhaps more important, there was no evidence that claimant would have sustained a substantial money loss.

In the present case the claimant relied upon the fact that a leave of absence had been granted and had made all necessary preparations at a considerable expenditure. The decision emphasizes that a substantial financial loss would result from the cancellation of the reservations."

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