Opinion
April 24, 1975.
Appeal from the Unemployment Insurance Appeal Board.
Denka Vukovic, appellant pro se. Louis J. Lefkowitz, Attorney-General (Frederick Paola, Samuel A. Hirshowitz and Murray Sylvester of counsel), for respondent.
This is an appeal from a decision of the Unemployment Insurance Appeal Board, filed December 4, 1974, affirming the decision of a Referee which sustained the initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits effective July 2, 1974 because she voluntarily left her employment without good cause.
Claimant, a Yugoslav barely conversant in English, continually worked for the same employer as a cleaning woman from November 6, 1970 until July 1, 1974 when she was scheduled for vacation until July 22, 1974. She did not return to her employment until September when she was notified that she had been replaced because of her failure to return after her vacation.
Claimant had gone back to Yugoslavia to see her 78-year-old mother in response to a letter from her mother to her brother in which the mother expressed a desire to see her daughter (the claimant) again. Although there is evidence to the contrary in the file, the claimant did testify before the Referee that she asked her employer, through her forelady, for a leave of absence and was advised that the forelady would do her best because claimant was a good worker. A prior statement by claimant that she did not ask for a leave of absence may be attributed to the fact that she did not understand the question.
At the hearing before the Referee, the representative of the employer requested an adjournment for the purpose of producing the forelady to determine whether or not the claimant had made any request for a leave of absence. The Referee denied that application for an adjournment and found that the claimant voluntarily left her employment without good cause.
It was arbitrary for the board to refuse to receive the testimony of the forelady, a material witness, in view of the unfamiliarity of the claimant with the English language and in view of the fact that both parties felt that the forelady had knowledge on the question of whether claimant had reason to believe she had been granted a leave of absence until September. The application by the employer to produce the forelady should have been granted.
The decision should be reversed, with costs, and the matter remitted for further proceedings not inconsistent herewith.
HERLIHY, P.J., GREENBLOTT and REYNOLDS, JJ., concur; MAIN, J., dissents and votes to affirm.
Decision reversed, with costs, and matter remitted for further proceedings not inconsistent herewith.