Opinion
May 14, 1981
Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 3, 1980, which affirmed the decision of a referee sustaining an initial determination of the Industrial Commissioner disqualifying claimant from receiving benefits upon the ground she voluntarily left her employment without good cause. Claimant was employed as a school secretary on a permanent basis in a private school. On August 18, 1980 claimant was informed by her employer that August 22 would be her last day of employment. Claimant expressed her desire to terminate her employment as of August 18 and the employment was thus terminated. The referee and board have disqualified claimant upon the ground she voluntarily quit her employment. We find that this decision is unsupported by substantial evidence. It is axiomatic "that when the employer advances a termination date, the termination is involuntary" (Matter of Ziembiec [Ross], 62 A.D.2d 1105). In their decision to deny claimant benefits, the referee and board found "The employer accepted the decision of husband and [claimant] wife with respect to ending the employment on that day [i.e., August 18]." Thus, since claimant's last day of work was only four days before the discharge date and the employer agreed to the employee's departure in advance of the discharge date, we are of the view that the termination took effect immediately (Matter of Grieco [Levine], 41 A.D.2d 799; see, also, Matter of Ziembiec [Ross], supra). Accordingly, this was not tantamount to a voluntary leaving, but rather an involuntary termination, and the board's decision must be reversed. Decision reversed, with costs, and matter remitted to the Unemployment Insurance Appeal Board for further proceedings not inconsistent herewith. Mahoney, P.J., Casey and Yesawich, Jr., JJ., concur.
Kane and Herlihy, JJ., dissent and vote to affirm the decision of the Unemployment Insurance Appeal Board.