Clarke v. North Detroit General Hosp.
| Citation | 446 N.W.2d 493,179 Mich.App. 511 |
| Decision Date | 20 October 1989 |
| Docket Number | Docket Nos. 99351,101176 |
| Parties | Edna T. CLARKE, Plaintiff-Appellant, v. NORTH DETROIT GENERAL HOSPITAL and MESC, Defendants-Appellees. Toni R. DAWSON, Plaintiff-Appellee, v. DETROIT RECEIVING HOSPITAL, Defendant-Appellant, and MESC, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Wayne County Neighborhood Legal Services, Inc. by Nicholas Roomeliotis, Detroit, for Edna T. Clarke.
Clark R. Ballard, Lansing, for North Detroit General Hosp. and Detroit Receiving Hospital.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Donna K. Welch, Asst. Atty. Gen., for Michigan Employment Sec. Com'n in Docket No. 99351.
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Morris J. Klau, Asst. Atty. Gen., for Michigan Employment Sec. Com'n in Docket No. 101176.
Before WEAVER, P.J., and SULLIVAN and BENSON, * JJ.
In this appeal, which consists of two consolidated unemployment compensation cases, we address the issue whether a graduate nurse who is terminated from employment for failing to pass the required state licensing examination is disqualified from unemployment compensation benefits for voluntarily leaving her work under Sec. 29(1)(a) of the Michigan Employment Security Act, M.C.L. Sec. 421.1 et seq.; M.S.A. Sec. 17.501 et seq. We hold that she is not.
While claimant Edna Clarke was enrolled in a state-approved nursing program at a local community college, she was employed by appellee North Detroit General Hospital as a nurse assistant. Just after she graduated from the nursing program, she applied for and was offered the position of a graduate nurse, which she accepted. In order to work as a graduate nurse, Clarke obtained a temporary state license required by M.C.L. Sec. 333.16181; M.S.A. Sec. 14.15(16181). About one month later, Clarke took the state licensing examination, which she was required to take and pass in order to obtain a permanent license to practice as a registered professional nurse. She continued working as a graduate nurse until she found out that she failed the examination. As a result of failing the examination, Clarke necessarily lost both her temporary license and employment as a graduate nurse.
During graduate nurse orientation, Clarke was made aware of the hospital's change in policy that it would no longer permit a graduate nurse who failed the examination to work as a nurse assistant until she could retake the examination.
Clarke applied for unemployment compensation benefits. Following a hearing, a Michigan Employment Security Commission referee held that Clarke was not disqualified from receiving unemployment compensation benefits under the voluntary leaving work provision, Sec. 29(1)(a), of the MESA. In a split decision, the Michigan Employment Security Board of Review reversed the referee's decision. In a subsequent appeal, the Wayne Circuit Court affirmed the board of review's decision.
Under similar circumstances, a contrary decision was reached in claimant Toni Dawson's case. Dawson was hired by appellant Detroit Receiving Hospital as a nurse technician shortly after graduating from the University of Michigan's nursing program. A few days later Dawson received her temporary license and, thus, was reclassified as a graduate nurse. Like Clarke, Dawson thereafter took the state licensing examination and failed it, which necessarily resulted in the loss of both her temporary license and employment as a graduate nurse.
Dawson sought but was denied unemployment compensation benefits by an MESC referee because the referee found that she voluntarily left her work under Sec. 29(1)(a) of the MESA. That decision was affirmed by the board of review, again in a split decision. In a subsequent appeal, the Wayne Circuit Court reversed the board of review, holding that Dawson was not disqualified from receiving benefits.
In both cases, the hospitals' policy had been to retain a graduate nurse who passed the state licensing examination in a position as a registered nurse. However, at the time Clarke and Dawson failed the examination, the hospitals' policy apparently was to discontinue the employment of a graduate nurse who failed the examination because she would not meet the statutory requirements necessary for the position. There is no dispute here that neither Clarke nor Dawson quit or willingly resigned from employment with the hospitals.
Although this Court may review questions of law or fact on appeal from the board of review, it will not disturb a decision of the board unless that decision is contrary to law or unsupported by competent, material and substantial evidence on the whole record. Stephen's Nu-Ad, Inc. v. Green, 168 Mich.App. 219, 222, 423 N.W.2d 625 (1988); Const. 1963, art. 6, Sec. 28; M.C.L. Sec. 421.38; M.S.A. Sec. 17.540. Here, in both cases, the boards of review concluded that claimants Clarke and Dawson were disqualified from benefits under Sec. 29(1)(a) of the MESA, which provides in pertinent part: "An individual shall be disqualified for benefits [where] ... the individual ... [l]eft work voluntarily without good cause attributable to the employer or employing unit." The question whether an employee left work "voluntarily" is a matter of law. Leeseberg v. Smith-Jamieson, Inc., 149 Mich.App. 463, 465-466, 386 N.W.2d 218 (1986).
The Legislature's use of the word "voluntary" is clear and requires application. Leeseberg, supra, at p. 466, 386 N.W.2d 218. "Voluntary" connotes a choice between alternatives which ordinary persons would find reasonable. Id.; Laya v. Cebar Construction Co., 101 Mich.App. 26, 32, 300 N.W.2d 439 (1980), quoting Lyons v. Employment Security Comm., 363 Mich. 201, 216, 108 N.W.2d 849 (1961), (Edwards, J., dissenting). In a recent decision, this Court, in construing Sec. 29(1)(a), concluded that the claimant's separation from his employment in no way was the result of an "unrestrained, volitional, freely chosen, or wilfull action" on the part of the claimant. Stephen's Nu-Ad, Inc., supra, 168 Mich.App. 219 at p. 223, 423 N.W.2d 625. See also the definition of "voluntary" in Webster's New World Dictionary.
Applying the definition of "voluntary" to the cases before us, we conclude that claimants did not leave work voluntarily. Claimants were required to take the examination. We are unable to conclude that they were faced with a choice between reasonable alternatives when they failed the examination. There is no evidence that their failing the examination was the result of an unrestrained, volitional, freely chosen, or wilful action on their part. To conclude that claimants voluntarily left their jobs would render perverse the meaning of the term "voluntary." Stephen's Nu-Ad, Inc., supra, at p. 223, 423 N.W.2d 625.
In further support of our conclusion we note that it is not up to this Court to amend the statute to extend the disqualifications set forth in plain language by the Legislature. Whether one in claimants' position should be disqualified is a question of policy for the Legislature. See Alexander v. Employment Security Comm., 4 Mich.App. 378, 383, 144 N.W.2d 850 (1966), lv. den. 379 Mich. 751 (1967), quoting Thomas v. Employment Security Comm., 356 Mich. 665, 669, 97 N.W.2d 784 (1959).
The remedial nature of the MESA also supports our conclusion. That act must be liberally construed to afford qualification and strictly construed to effect disqualification....
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