DIGEST OF ADJUDICATION PRECEDENTS VL
VL-39 (02/08)
ISSUE/DIGEST Voluntary Leaving/VL 160.05
DOCKET/DATE ABR-85-756/6-25-85
AUTHORITY Section 601A of the Act
TITLE Efforts to Retain Employment
SUBTITLE Obtaining a License
CROSS-REFERENCE MC 135.3, Discharge or Leaving; MC 165.05
In October, 1979, the claimant was hired as a Nurse's Assistant. Pursuant to a statute passed in 1980, Nurse's Assistants were
required to be licensed by the State. The claimant's certificate that had been issued in 1968 was not recognized by the 1980 statute,
and, moreover, the claimant had not had sufficient work experience prior to the passage of the statute to take advantage of that
portion of the statute which allowed licensing based upon work experience. Subsequent to the passage of the 1980 statute, the
claimant was notified that her employer could not continue to employ her because of her lack of the requisite license.
HELD: There are instances in which an employer cannot retain a worker in its employ because the worker has failed to meet a
legal requirement for continued employment. Even though the employer does not have the option to retain the worker, the
resulting separation is generally considered a discharge as opposed to a voluntary leaving, unless it is established that was
contemplated in the working agreement and was within the control of the affected worker to satisfy the legal condition for
continued employment. In the instant case, the requirement for State certification was mandated at some time after the claimant's
hire and there was no assurance that the claimant had within her control the ability to obtain the requisite certification. Therefore,
the claimant's work separation was a discharge (not for misconduct) and not a voluntary leaving.
(The Board of Review compared the instant case to its previous decision, ABR-84-237, dated October 17, 1984: In that case, the
claimant was hired with the understanding that, within a relatively brief time after hire, she would be required to attend a training
course in order to become certified. The claimant chose not to attend the training course, and, thereby, precluded any opportunity
to maintain the certification required to keep her job. The distinguishing feature of that case, as opposed to the instant case, was
that the claimant was aware of, and accepted the responsibility for, obtaining the proper State certification, which was within her
control to obtain.)
ISSUE/DIGEST Voluntary Leaving/VL 160.05
DOCKET/DATE ABR-84-12229/10-4-85
AUTHORITY Section 601A of the Act
TITLE Efforts to Retain Employment
SUBTITLE Interpretation of Remark or Action
CROSS-REFERENCE VL 135.2, Discharge or Leaving; MC 135.2
The claimant worked as a Jewelry Salesman, and enjoyed a familiar relationship with the store's owner, for whom he had worked
for 25 years. From May, 1983, through September 2, 1983, the claimant had been absent from work due to illness. On September
3, he returned to work, unannounced, and was preparing to open the store, when the owner told him that he had hired a new
employee. Upon hearing this, the claimant handed the owner his keys and left.
At a hearing, the employer testified that the new employee had not been hired as a replacement for the claimant. The claimant
testified that he had assumed that he had been replaced by the new employee.
HELD: There are some situations in which it is difficult to determine whether a separation is a discharge or a voluntary leaving, as
both the employer and worker have made some remark or have taken some action which has contributed to the initiation of a
separation. Generally, if an employer makes a remark or takes some action which initiates the separation, then a discharge has
occurred. However, if the employee is given a choice of remaining at work, it is a voluntary leaving. In either case, the
reasonableness of the parties' actions must be considered.
Even though an employer's remark might generally give rise to a discharge, in the instant case, the claimant's belief that he had
been discharged was not reasonable. Considering his many years of employment, and his familiar relationship with the owner, the
claimant should have taken steps to ascertain his status. His failure to do so by departing abruptly constituted a voluntary leaving
without good cause attributable to his employer.
