Tuesday, January 3, 2012

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

Here is another case which found a compelling reason but note the caveats in the comment:

"Index No. 1730.4
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

April 24, 1951

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING OF EMPLOYMENT
Illness in Family
Personal Affairs
Referee’s Case Number 512-661-50R


VOLUNTARY LEAVING TO VISIT CRITICALLY ILL MOTHER IN FOREIGN COUNTRY

Claimant’s action in voluntarily leaving employment to visit his critically ill aged mother in a foreign country constituted a pressing and compelling reason and was with good cause.

Findings of Fact: A hearing was held at which claimant and a representative of the Industrial Commissioner appeared and testified. Claimant, a baker, filed for benefits on November 13, 1950. By initial determination effective that date, he was disqualified for 42 days for leaving employment voluntarily. Prior to filing for benefits, claimant last worked in July 1949. He left the job to go to Italy to visit his aged mother who was critically ill and who desired to see him. Claimant had not seen his mother for many years. His mother was most anxious to have him come to visit her because she feared she would not survive long enough for her to see him again if she did not see him then. Claimant submitted a statement from the doctor who attended his mother, indicating the severity of her ailment and the fact that it was necessary for claimant to remain at her side until her health was sufficiently improved for him to leave. When this was so, claimant returned to the United States. The insurance representative urged that Appeal Board, 21,840-49 was applicable to the facts herein.

Referee’s Opinion and Decision: The case before me is distinguishable from Appeal Board, 21,840-49. The claimant in the cited case went to Sweden to visit relatives whom he had not seen for may years. There was no pressing reason for claimant’s gong there, except his long absence away from his family. To claimant’s mother it was a vital matter that he see her. The filial relationship in the case before me was a greater bond and of more compelling circumstance than the fraternal relationship in the case cited. It is held that claimant had good compelling reason to leave his job under the circumstances, and that he did not leave his employment voluntarily without good cause. The initial determination is overruled. (March 20, 1951)

COMMENT

One of the tests in determining whether a claimant’s leaving of employment is with good cause under the above circumstances is to determine whether leave of absence would have been granted and whether claimant requested such leave. Requesting a leave of absence rather than arbitrarily quitting is generally the action of a reasonably prudent person. The absence of such request when it would have been granted, together with the absence of any credible reason for failure to do so, could be considered a voluntary leaving of employment without good cause. It should be noted that the case here reported does not contain any facts relative to the above reasoning. Whether or not a different conclusion would have been reached by the Referee if such information had been obtained would be dependent upon the specific facts elicited.
Appeal Board Case 21,840-49 cited by the Referee which should be reviewed with this release was reported under A-750-922."

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