Thursday, January 5, 2012

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

In support of the DOL's position that a vacation taken without prior approval is a voluntary separation without good cause, the following is cited:

"A-750-1358

Index No. 1730-6
NEW YORK STATE DEPARTMENT OF LABOR
UNEMPLOYMENT INSURANCE DIVISION
ADJUDICATION SERVICES OFFICE

May 3, 1955

INTERPRETATION SERVICE – BENEFIT CLAIMS
VOLUNTARY LEAVING
Personal Affairs
Appeal Board Case Number 49,052-55


LEAVE OF ABSENCE DENIED WITH CLAIMANT ASSUMING RISK OF NON-REINSTATEMENT UPON RETURN

Voluntary leaving of employment for the purpose of taking a non-essential trip abroad is without good cause when claimant is not granted a leave of absence and assumes the risk of not being re-employed upon his return.

Referee’s Findings of Fact: A hearing was held at which claimant, his witness and a representative of his employer appeared and testified. A statement was submitted on behalf of the Industrial Commissioner in lieu of an appearance. Claimant, an optician, filed for benefits on October 22 effective October 18, 1954. By initial determination effective October 18 he was disqualified for 42 days for voluntarily leaving employment without good cause. He filed a new claim effective November 29 and on this filing was held not to have filed a valid original claim because he had only 18 weeks of employment in the applicable base period. The initial determination of voluntary leaving of employment without good cause was mailed to claimant on November 5. He executed a formal request for hearing on December 7. A preliminary objection has been raised that claimant’s request was not timely. Claimant worked for the same employer for over 25 years to April 1954. He then desired a leave of absence because he had received word that his aged mother was seriously ill abroad and he was anxious to visit her. He spoke to the business agent of his union and also spoke to the head of his employer’s organization. He was told that no definite guarantee could be given at that time, but to communicate with his employer on his return from abroad. Claimant thereupon left and returned from abroad in October. He promptly communicated with his employer but there was no work then available for him. He thereafter filed the claim in issue. When claimant was questioned at the insurance office he was told about the disqualification which was intended to be issued and objected orally thereto. He did not return to the insurance office after the issuance of the initial determination in reliance upon what he believed had been instructions to him not to return to that office until November 29. Had it not been for what he believed were instructions to this effect he would have continued to report and would earlier have requested a hearing.

Referee’s Opinion and Decision: Although claimant did not formally request a hearing within 20 days from the issuance of the determination no November 5 he did object orally on the very date that the determination was issued when he was interviewed at the insurance office with respect to the circumstances surrounding the termination of his employment. I am convinced that although it was not intended by the insurance office representative that claimant conclude that he was to discontinue reporting until November 29, claimant relied upon what he considered to be instructions to this effect. I hold that claimant’s oral protest was sufficient to constitute a request for a hearing and that he is entitled to a hearing on the merits. In the instant case claimant did not leave his job over any objection voiced by his employer. He followed what had been standard practice to extend leaves of absence to employees of long standing if there was a meritorious reason therefore. Claimant left under a mutual understanding that there would be further work for him on his return. The failure of his employer to furnish claimant with additional work when he reapplied following his return from abroad was because of a falling off in business which was not anticipated at the time claimant left. I hold under these circumstances that claimant’s leaving was not without good cause under circumstances, which should subject him to disqualification. The initial determination that claimant voluntarily left employment without good cause is overruled.

Appealed By: Industrial Commissioner

Appeal Board Opinion and Decision: After a review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact are fully supported by the evidence in this case, and that no errors of fact appear to have been made, the Board adopts the findings of fact made by the referee as the findings of fact of this Board, except as follows: We find that claimant voluntarily left his employment to make a trip to Germany to accompany his wife, as a matter of personal convenience and not because of any compelling necessity. He and his wife went to Europe to see his wife’s mother, not claimant’s mother, as was found by the referee. Claimant was aware that his employer did not grant him a leave of absence for the purpose of his visit to Germany and that he was to assume the risk of being re-employed upon his return. The question presented is whether or not claimant voluntarily left his employment with good cause. After an examination of the record and testimony adduced before the referee, we can not agree with the conclusion reached by the referee, which is at variance with his findings of fact, that claimant left his employment under a mutual understanding that there would be further work for him on his return from abroad. On the contrary, claimant was made aware that his request for a leave of absence for a period of six months would not be granted. He was given to understand that if work were available for him upon his return from abroad, he might be rehired, but there was no assurance that a job would be available. When claimant returned from his trip and applied for reinstatement, his employer found no need for his services and did not rehire him. Under the circumstances, claimant is deemed to have left his employment without good cause within the meaning of the Unemployment Insurance Law. The initial determination of the local office disqualifying claimant from receiving benefits for 42 consecutive days effective October 18, 1954 on the ground that he voluntarily left his employment without good cause is sustained. The decision of the referee is reversed. (April 1, 1955)"

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