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

Another Appeal Board case from 2010:

"STATE OF NEW YORK
UNEMPLOYMENT INSURANCE APPEAL BOARD
PO Box 15126
Albany NY 12212-5126
DECISION OF THE BOARD
Mailed and Filed: NOVEMBER 09, 2010
IN THE MATTER OF: Appeal Board No. 550224
PRESENT: GERALDINE A. REILLY, LEONARD D. POLLETTA MEMBERS

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective June 16, 2009, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by WILLEX INDUSTRIAL CORP prior to June 16, 2009, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.The Administrative Law Judge held a telephone conference hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed January 22, 2010 (), the Administrative Law Judge overruled the initial determination. The employer appealed the Judge's decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant and the employer.
Based on the record and testimony in this case, the Board makes the following
FINDINGS OF FACT:

The employer is a wholesale distributor of fasteners. The claimant was the General Manager of a distribution facility in China. On March 18, 2009, the claimant requested permission to take a vacation in June. The employer did not deny this
request. On June 5th, the claimant sent an inflammatory e-mail to the employer's largest client in Asia based on his understanding of instructions from the employer. On June 9th, the claimant advised the employer that he was leaving for his trip, which would be more than two weeks long. The trip was to a mountain-climbing expedition in South America that was being conducted as a fundraiser for a cancer foundation. The employer's Chief Executive Officer has donated to this foundation in the past and encouraged the claimant to participate in the foundation. The claimant had incurred almost $2,500 in expenses related to this planned trip. The employer sent the claimant an e-mail telling him that he was not to leave, and if he did leave, his departure would be deemed an abandonment of his duties and a resignation. The claimant wrote back to say that he was going to leave and that the office would be well taken care of. The claimant left on vacation. On June 15, the employer sent the claimant a termination letter based on gross misconduct and insubordination.

OPINION:

The credible evidence establishes that the claimant asked the employer on
March 18, 2009 for permission to take a vacation in June. Although the claimant and the employer dispute whether this vacation request was approved or not, the employer does not claim to have denied this request. Whereas the employer's CEO was aware of the claimant's activities regarding the cancer foundation, encouraged the claimant's
participation, had donated to the foundation in the past, and had discussed this specific vacation request with the claimant, we find that it is likely that the employer was aware that the claimant was planning his trip, and the employer did nothing to stop the claimant from incurring expenses related thereto. Further, we understand the employer's objection to the claimant's vacation to be based on the situation with the e-mail that the claimant sent the client pursuant to his understanding of the employer's instructions. As such, we conclude that the employer had tacitly, if not expressly, approved the vacation, and then revoked this approval in the wake of the e-mail incident. Under these circumstances, we conclude that the claimant was justified in taking an approved vacation that he had already planned and incurred expenses for. This case does not resemble Appeal Board Case 49,052-55 (cited by the employer as A-750-1358). In that case, the claimant was held to have voluntarily separated from employment in that the employer never approved the claimant's requested leave and the claimant was expressly told, before taking a six-month leave of absence, that reemployment could not be guaranteed upon his return. Accordingly, we conclude that the claimant was not insubordinate and did not lose his employment as a result of misconduct. In deciding this appeal, we decide only the Unemployment Insurance issue before us and no legal or factual issue that may be pending in any other forum. (See Labor Law § 623[2]).

DECISION:

The decision of the Administrative Law Judge is affirmed. The initial determination, disqualifying the claimant from receiving benefits effective June 16, 2009, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by prior to June 16, 2009, cannot be used toward the establishment of a claim for benefits, is overruled. The claimant is allowed benefits with respect to the issues decided herein.

GERALDINE A. REILLY, MEMBER
LEONARD D. POLLETTA, MEMBER"