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Miller (Visiting Nurse Association) 12.29

MISCONDUCT, Discharge in anticipation of leaving

CITE AS: Miller (Visiting Nurse Association), 1978 BR 54236 (B76- 17052).

Appeal pending: No

Claimant: Linda Miller

Employer: Visiting Nurse Association

Docket No: B76 17052 54236

BOARD OF REVIEW HOLDING: A discharge in anticipation of voluntary leaving is a non-disqualifying separation.

FACTS: The claimant was employed as a secretary. "On May 11, 1976, the claimant notified her employer that she intended to quit on July 10, 1976. On June 23, 1976, the employer discharged the claimant because of the claimant's projected leaving."

DECISION: "It is held that the claimant's discharge on June 23, 1976 is non-disqualifying under Section 29 of the Act."

RATIONALE: "Appeal Board precedent on the issue of a discharge in anticipation of a quit is at odds. One view (followed by the Referee in this matter) is that the discharge is disqualifying under Section 29(1)(a). Eg, In re Farmer (Michigan Kitchen Distributors), B72 2870 41782. The other view is that such a discharge is a non-disqualifying separation. Eg, In re Howarth (Falvey Autos, Inc.), B65 3611 34164; In re Terry (Paul's Steak House), B64 5185 33210. See also Carter's Hamburgers, Inc. v Employment Security Commission, Case No 316, 234 (Wayne County Cir Ct 1961) and Hubert v Appeal Board, Case No 323, 171 (Wayne County Cir Ct 1962).

"In our opinion, the latter view is correct. Under Section 29(1)(a), a 'leaving' must be 'voluntary' to be disqualifying. When an employee is discharged for giving notice of an intent to leave his work at a future date, his leaving is involuntary. Absent proof to the contrary, the employee cannot be deemed to have chosen unemployment. Rather, his unemployment is the result of his employer's judgment about the efficiency of the firm."


5, 14, 15:NA

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