Opinion
November 14, 1957.
January 21, 1958.
Unemployment compensation — Voluntarily terminating work — Cause of necessitous and compelling nature — Refusal to work morning shift — Morning sickness due to pregnancy — Circumstances — Burden of proof — Unemployment Compensation Law.
1. An unemployment compensation claimant who admittedly terminates his employment of his own accord has the burden of establishing good cause for the separation.
2. If an employee's illness is severe enough to justify a voluntary leaving of employment, that illness will also ordinarily justify a finding that he is not able to work.
3. Unemployment compensation is not sickness insurance.
4. In an unemployment compensation case, in which it appeared that claimant protested a transfer from an afternoon shift to one commencing in the morning because she was suffering from morning sickness due to her pregnant condition; that claimant testified that she could have worked a morning shift but might have had to excuse herself several times during the morning, and there was testimony that the employer was willing to have her work under these circumstances; and that the board found that claimant's refusal to accept the morning shift was based on a necessitous and compelling reason; it was Held, in the circumstances, that claimant's reason for voluntarily leaving work was not compelling and necessitous and that, therefore, she was ineligible for benefits under § 402(b) of the Unemployment Compensation Law.
Before RHODES, P.J., HIRT, GUNTHER, WRIGHT, WOODSIDE, ERVIN, and WATKINS, JJ.
Appeal, No. 135, April T., 1957, by employer, from decision of Unemployment Compensation Board of Review, March 27, 1957, Decision No. B-44061, in re claim of Georgia Rogan. Order reversed.
Irving Olds Murphy, with him Gifford, Graham, MacDonald Illig, for appellant.
Sydney Reuben, Assistant Attorney General, with him Thomas D. McBride, Attorney General, for appellee.
WRIGHT, J., filed a dissenting opinion.
Argued November 14, 1957.
This is an appeal by the employer from an order of the Unemployment Compensation Board of Review granting compensation to the claimant.
The claimant had been employed by the appellant on a shift working from 3:30 o'clock in the afternoon until midnight. When she was transferred to a shift starting work at 7 o'clock in the morning, she left her employment and filed a claim for unemployment compensation. The Bureau of Employment Security disapproved the claim on the ground that she "voluntarily quit her employment without compelling and necessitous reason." See section 402(b) of the Unemployment Compensation Law, 43 P. S. § 802(b). Upon appeal by the claimant to the referee, he awarded compensation, and upon appeal by the employer to the Unemployment Compensation Board of Review, it affirmed the referee.
An unemployment compensation claimant who admittedly terminates his employment of his own accord has the burden of establishing good cause for the separation. Kaminski Unemployment Compensation Case, 174 Pa. Super. 242, 101 A.2d 132 (1953); Seroskie v. Unemployment Compensation Board, 169 Pa. Super. 470, 82 A.2d 558 (1951); Mikanowicz Unemployment Compensation Case, 178 Pa. Super. 612, 115 A.2d 846 (1955).
Section 402 (b) of the Unemployment Compensation Law, 43 P. S. § 802 (b), as last amended and here applicable, provides, inter alia: "An employe shall be ineligible for compensation for any week . . . (b) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature, . . ."
The board found that claimant "protested this transfer because she was ailing with morning sickness due to her pregnant condition," and concluded that she "had good cause for not accepting the transfer from the second to the first shift, and when the employer was unable to continue her either on the second or third shift, her refusal to accept the first shift was based on necessitous and compelling reason."
What was the "necessitous and compelling reason" that caused her to quit her employment? It was illness — "ailing with morning sickness." If an employee's illness is severe enough to justify a voluntary leaving of employment, that illness will also ordinarily justify a finding that she is not able to work. Sturdevant Unemployment Compensation Case, 158 Pa. Super. 548, 559, 45 A.2d 898 (1946).
Unemployment compensation is not sickness insurance. Miller Unemployment Compensation Case, 158 Pa. Super. 570, 45 A.2d 908 (1946). It was not intended to compensate those who quit work because of illness. Antinopoulas Unemployment Compensation Case, 181 Pa. Super. 515, 124 A.2d 513 (1956).
The claimant testified: "I could have done my work (during the first shift) but I might have had to excuse myself several times during the morning . . . I am definitely able to work." The employer expressed no objection to her "excusing (herself) several times during the morning."
Since she acknowledged that she was able to work under these circumstances and her employer was willing to have her do so, her reason for voluntarily leaving work was not compelling and necessitous. She is, therefore, ineligible for unemployment compensation under the provisions of section 402(b) of the Unemployment Compensation Law, supra, 43 P. S. § 802(b).
Order reversed.
For a number of years Mrs. Georgia Bemis Rogan was a faithful employe of the Erie Resistor Corporation, working on the afternoon shift. She became pregnant early in October, 1956. On November 21, 1956, Mrs. Rogan was informed that she was being transferred to the morning shift. She protested the transfer because she was suffering from morning sickness due to her pregnant condition. We should certainly not be unmindful of the frequent occurrence of morning sickness in the early stages of pregnancy. In fact, Mrs. Rogan produced a certificate from her physician in which it was recommended that she be given work on the afternoon shift. She desired to continue working for several more months, and was fully capable of performing her duties on either the afternoon or the night shift. Since the employer insisted that she must work on the morning shift or take a maternity leave, Mrs. Rogan was forced to accept a leave at an earlier date than ordinarily required. Her claim is only for the intervening period, not for the entire duration of her pregnancy.
We have ascertained that the baby was born on July 6, 1957.
The compensation authorities found as a fact that Mrs. Rogan's temporary refusal to accept work on the morning shift was based on "a compelling and necessitous reason". This finding was fully supported by the evidence. The cases cited by the majority have no application in the present factual situation. The Sturdevant case dealt with the problem of a married woman leaving work to join her husband. In the Miller case the claimant was entirely unable to work, whereas in the case at bar Mrs. Rogan could work on either the afternoon or the night shift. In the Antinopoulas case we remanded the record and, by an opinion filed this day in that case, we have affirmed the award of benefits.
In unemployment compensation cases the determination of the condition of health of the employe and of the suitability of the work offered, considering the status of health, are questions of fact, findings as to which cannot be disturbed by the appellate court if they are supported by the evidence: Rosell Unemployment Compensation Case, 184 Pa. Super. 556, 135 A.2d 769. The instant situation is the converse of that in the Rosell case and, by necessary implication, is controlled by our unanimous opinion in that case. Since I feel very strongly that the decision of the Board of Review should be affirmed, I am obliged to dissent.