Summary
In Kasnowski v. Department of Employment Security, 137 Vt. 380, 382, 406 A.2d 388, 389 (1979), we held that a quit for anticipatory reasons is not good cause attributable to the employer.
Summary of this case from Rushlow v. Dept. of Employment and TrainingOpinion
No. 192-78
Opinion Filed September 10, 1979
1. Unemployment Compensation — Judicial Review — Findings
Employment Security Board findings will not be disturbed unless, considered as a whole, there is no evidence to support the decision.
2. Evidence — Weight and Sufficiency — Role of Trier
Weight, credibility and persuasive effect of the evidence are for the trier of fact.
3. Unemployment Compensation — Employment Termination — By Employee Without Good Cause
Where seasonal employee agreed to work longer hours during high volume periods than he had worked the previous season, and on New Year's Day he told his employer he needed seven hours sleep between shifts and was told he could not be guaranteed that over Washington's Birthday, and he requested his pay check immediately and said he was leaving, there was no breach of hiring agreement, his concern over future hours was speculative and unjustified, his concern over his health was unreasonable, he chose to quit for speculative personal reasons, and he was properly disqualified from unemployment compensation benefits. 21 V.S.A. § 1344(a).
4. Contracts — Construction — Extrinsic Evidence
Where seasonal employment agreement itself, not employee's understanding of it, was the material point for determination, it was not error to limit scope of examination with respect to terms of previous year's employment at the same place.
Appeal from disqualification for unemployment compensation benefits. Employment Security Board, Kerr, Chairman, presiding. Affirmed.
James C. May, Vermont Legal Aid, Inc., Springfield, for Plaintiff.
Michael F. Ryan and Brooke Pearson, Montpelier, for Defendant.
Present: Barney, C.J., Daley, Larrow and Hill, JJ., and Smith, J. (Ret.), Specially Assigned
Claimant Kasnowski appeals from a determination of the Employment Security Board disqualifying him from unemployment compensation benefits under 21 V.S.A. § 1344(a)(2)(A) as having left his last employing unit voluntarily without good cause attributable to such employing unit. He challenges some of the findings below as unsupported, and asserts that even if supported they do not support the Board's conclusion. We disagree and affirm.
Appellant makes a forceful argument with respect to the evidence before the Board, which might even be persuasive were we the triers of fact in the first instance. But we are not, and, as we have many times indicated, we will not disturb the findings of the Board unless, considered as a whole, there is no evidence to support the decision. LaFountain v. Vermont Employment Security Board, 133 Vt. 42, 46, 330 A.2d 468, 471 (1974). Weight, credibility and persuasive effect are for the trier of fact. A review of the record convinces us that the findings needed to support the Board's conclusions find support in the evidence, although sharply contradicted and, on some nonessential particulars, substantially discredited.
The findings which bear directly upon the Board's decision may be summarized to delineate the point in issue. Claimant was a seasonal employee, assistant chef trainee at the Nordic Inn, Inc., in Londonderry during the 1976-77 season. He was laid off in the spring of 1977 for lack of work. He was re-employed for the 1977-78 season in August, 1977, under an oral work agreement, as assistant chef. He agreed to longer work hours, not defined, during high volume periods. His "understanding" of what these meant was based upon his previous season's experience. The precise terms of the agreement were disputed, but the Board found on credible evidence that he agreed to "long hours" at periods of high business volume, including Christmas and Washington's Birthday weekends. From Christmas 1977 through New Year's, 1978, claimant worked 55 1/2 hours for his employer, plus some six hours on New Year's Eve for another employer. On New Year's Day, he had a discussion about being tardy on two occasions and his employer's expectation of "long hours." He stated that he needed seven hours sleep between shifts, and was told he could not be guaranteed this over Washington's Birthday. He then requested his pay check immediately and said he was leaving. During the Christmas rush period he had had the minimum sleep time he requested.
The Board concluded there was no established breach of hiring agreement, that claimant's concern over future hours was speculative and unjustified, that his concern over his health was unreasonable, that he chose to quit for speculative personal reasons, and that he was accordingly subject to the statutory disqualification. We agree.
Although Albin v. Department of Employment Security, 134 Vt. 120, 352 A.2d 678 (1976), is distinguishable, this case presents a clear corollary to the rule laid down therein. In Albin we refused to disqualify a claimant for benefits when he was fired merely for anticipatory misconduct, refusal to work future overtime contrary to the terms of employment. We quite clearly laid down the requirement that, for misconduct to be attributable to an employee, it must be more than anticipatory misconduct; it must be present and actual. So in the instant case, with equal logic and justice, a quit for something that is only a future possibility and has not actually yet occurred does not justify the award of benefits. As in Albin, it may well never occur; a fortiori from Albin it is not even shown here that it would be an unreasonable breach of the hiring agreement if it did occur. In this situation the quit was voluntary and for personal reasons not attributable to the employer.
Claimant also urges error in the action of the appeals referee in limiting the scope of examination with respect to the terms of his previous year's employment, arguing that he based his understanding of his second employment upon those requirements. Since the agreement itself, and not just claimant's understanding of it, is the material point for determination, prejudice from the error, if any, is not demonstrated. No discussion of the previous agreement was shown, and it also appeared that during the prior year claimant was only a trainee, without prior experience.
No error appears, and the judgment must be affirmed.
Judgment affirmed.