MacDonald v. Department of Employment Security

385 A.2d 1117, 136 Vt. 184, 1978 Vt. LEXIS 714

Opinions

Billings, J.

Appellant was employed as a waitress at the Bardwell Hotel. On March 12, 1977, after an altercation with another employee, she advised the owner that she was giving two weeks’ “formal notice” of intention to leave her employment. The owner told her to think the matter over, and two days later she returned and insisted on giving the employer a two-week notice of termination “as a courtesy.” The employer advised her that she could remain in the employment but that no notice was required or was customary in the trade and that if she was going to leave her employment, it would be terminated forthwith. The appellant left immediately.

The appellant applied for unemployment benefits claiming that she had been wrongfully discharged. The claimant was disqualified from receiving such benefits since the Vermont Employment Security Board found that she left her last employing unit voluntarily without good cause attributable to such employing unit. 21 V.S.A. § 1844 (a) (2) (A). Appellant has appealed this decision.

Appellant argues that we should give a liberal construction to the statutes here involved because of their remedial and beneficial purpose, and we have so held; but it does not follow that every claim for compensation must be allowed where the general policy of the statute does not encompass, it. This general policy as expressed in 21 V.S.A. § 1344(a) (2) (A) bars an applicant’s claim when “ [h] e has left the employ of his last employing unit voluntarily without good cause attributable to such employing unit.” This expresses the general principle that unemployment compensation is not a benefit available to him at his election, but rather one to which he gains entitlement by circumstances less within his control. Lane v. Department of Employment Security, 134 Vt. 9, 10, 347 A.2d 454 (1975). The basic issue here for determination is whether the appellant quit her job or was fired. Absent an employment contract provision or a trade usage as to notice to quit, an employee’s options do not include a right to specify a future effective date of termination. A voluntary quit is without good cause if it is conditioned in a manner not within the options open to the employee. To hold otherwise would be to allow the employee unilaterally to write a new contract of employment.

From a review of the record, the Board’s finding that appellant was given the choice of remaining on the job or leaving immediately was amply supported, and she chose the latter. Frost v. Department of Employment Security, 135 Vt. 39, 370 A.2d 203 (1977).

Affirmed.