Employment Sec. Com'n v. Children's Hosp.

• Decision Date: 22 February 1985
• Docket Number: Docket No. 66478
• Parties: EMPLOYMENT SECURITY COMMISSION, Appellant, v. CHILDREN'S HOSPITAL and Patricia A. Ponder, Appellees. 139 Mich.App. 525, 362 N.W.2d 819
• Court: Court of Appeal of Michigan — District of US

Page 819

362 N.W.2d 819

EMPLOYMENT SECURITY COMMISSION, Appellant, v. CHILDREN'S HOSPITAL and Patricia A. Ponder, Appellees.

Docket No. 66478.

139 Mich.App. 525, 362 N.W.2d 819

Court of Appeals of Michigan.

Submitted Dec. 6, 1983.

Decided Dec. 17, 1984.

Released for Publication Feb. 22, 1985.

[139 MICHAPP 526] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Patricia L. Sherrod, Asst. Atty. Gen., for the Employment Sec. Com'n.

Charlene Canvasser Brooks, Lansing, for Children's Hosp. of Michigan.

Before T.M. BURNS, P.J., and MacKENZIE and ROBINSON ^*, JJ.

MacKENZIE, Judge.

This is an unemployment compensation case in which we must decide whether [139 MICHAPP 527] an employee who is terminated for failure to meet state licensing requirements is entitled to receive benefits.

Appellant, the Michigan Employment Security Commission (hereinafter MESC), appeals as of right from an order of the Wayne County Circuit Court reversing the decision of the Michigan Employment Security Board of Review. The Board of Review had affirmed a MESC referee's determination that Patricia A. Ponder (hereinafter claimant) was eligible for unemployment benefits.

After her graduation from a registered nursing program, claimant obtained a temporary license pursuant to M.C.L. Sec. 333.16181; M.S.A. Sec. 14.15(16181) and began working for appellee Children's Hospital of Michigan as a graduate nurse on July 17, 1978. Thereafter claimant twice took the state licensing examination which, if passed, would qualify her as a registered nurse. She failed both times. As a result, claimant necessarily lost both her temporary license and, on May 24, 1979, her employment with the hospital.

The claimant thereafter applied for unemployment benefits, which were approved on June 13, 1979. Redeterminations upholding the award of benefits to claimant were subsequently issued by the MESC, and the hospital timely requested a referee hearing. In an opinion dated May 2, 1980, the referee affirmed the MESC; this ruling was in turn affirmed by the Board of Review on January 21, 1982. The Wayne County Circuit Court reversed the board's decision on appeal, holding that, under M.C.L. Sec. 421.29(1)(a); M.S.A. Sec. 17.531(1)(a), the claimant's failure to "maintain a prerequisite for hire and for continued employment * * * must be deemed to be a 'voluntary leaving without good cause attributable to the employer' ".

On appeal from decisions of the Board of Review, this Court may review questions of law or fact. [139 MICHAPP 528] Const.1963, art. 6, Sec. 28; M.C.L. Sec. 421.38; M.S.A. Sec. 17.540; Chrysler Corp. v. Sellers, 105 Mich.App. 715, 720, 307 N.W.2d 708 (1981). However, the decision of the Board of Review may be reversed only if it is contrary to law or is unsupported by competent, material, and substantial evidence on the record. Sellers, p. 720, 307 N.W.2d 708.

The sole issue presented here is whether a claimant whose failure to pass a licensing examination necessitates the termination of her job can be said to have "voluntarily" left her employment under M.C.L. Sec. 421.29(1)(a); M.S.A. Sec. 17.531(1)(a), which provides:

"(1) Grounds. An individual shall be disqualified for benefits in all cases in which he:

"(a) Has left work voluntarily without good cause attributable to the employer or employing unit". ¹

Our inquiry begins with a brief review of the public policy behind the passage of the Michigan Employment Security Act, for its provisions "must be read in the light of the purpose of the legislature in enacting it". I.M. Dach Underwear Co. v. Employment Security Comm., 347 Mich. 465, 471, 80 N.W.2d 193 (1956). The "Declaration of Policy" as found in Sec. 2 of the act, M.C.L. Sec. 421.2; M.S.A. Sec. 17.502, says:

"Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this state. Involuntary unemployment is a subject of general interest and concern which requires action by the legislature to prevent its spread and to lighten its burden which so often falls with crushing [139 MICHAPP 529] force upon the unemployed worker and his family, to the detriment of the welfare of the people of this state. Social security requires protection against this hazard of our economic life. Employers should be encouraged to provide stable employment. The systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment by the setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own, thus maintaining purchasing power and limiting the serious social consequences of relief assistance, is for the public good, and the general welfare of the people of this state". (Emphasis added.)

The act, therefore, was intended primarily for the benefit of those who are involuntarily unemployed, i.e., those who "are unemployed because of conditions [in the labor market] over which they have no control". Dwyer v. Unemployment Compensation Comm., 321 Mich. 178, 188, 32 N.W.2d 434 (1948). (Emphasis added.)

Appellant MESC relies primarily on Thomas v. Employment Security Comm., 356 Mich. 665, 97 N.W.2d 784 (1959), for its position that in order to be disqualified under Sec. 29(1)(a) an employee must intend to leave his job, or otherwise deliberately or negligently set in motion conditions which inevitably lead to his dismissal. In Thomas, an employee was arrested en route to work for driving his automobile without an operator's license. Because of his subsequent conviction and incarceration, he was unable to report for work and his employment was terminated by his employer shortly thereafter. Addressing whether this sequence of events constituted leaving work voluntarily, the Court stated:

"The voluntary assumption of a risk which an employee knows may, but he trusts and assumes will not, keep him from work is not the voluntary leaving of his work. Doing an act, even though voluntarily, which [139 MICHAPP 530] results, contrary to the doer's hopes, wishes and intent, in his being kept forcibly from his work is not the same as voluntarily leaving his work. The statute mentions the latter, but not the former, as an act disqualifying for benefits." Thomas, supra, p. 669, 97 N.W.2d 784.

Numerous other Michigan cases have since followed the Thomas rationale in holding that a voluntary act by an employee which results in his or her termination is not necessarily a voluntary leaving. See, e.g., Sullivan v. Employment Security Comm., 358 Mich. 338, 100 N.W.2d 713 (1960) ²; Wickey v. Unemployment Security Comm., 369 Mich. 487, 120 N.W.2d 181 (1963); Larson v. Employment Security Comm., 2 Mich.App. 540, 140 N.W.2d 777 (1966), and Laya v. Cebar Construction Co., 101 Mich.App. 26, 300 N.W.2d 439 (1980).

Appellee hospital cites Echols v. Employment Security Comm., 380 Mich. 87, 155 N.W.2d 824 (1968), in support of its position that an employee who fails to maintain his statutorily required license has voluntarily left his employment. Echols involved a taxicab driver whose operator's license was suspended for 90 days because of an accumulation of traffic violations. As a valid license was a prerequisite for employment, claimant no longer reported for work, but instead filed an application for unemployment benefits. The Michigan Supreme Court upheld the decision of the Board of Review by ruling that claimant had voluntarily left his job and was therefore disqualified from receiving unemployment benefits. In so holding, the majority rejected Justice Souris's argument that such an interpretation would require the application of the doctrine of "constructive voluntary [139 MICHAPP 531] leaving", a doctrine the use of which has been repeatedly rejected by the Michigan Supreme Court. See, e.g., Copper Range Co. v. Unemployment Compensation Comm., 320 Mich. 460, 469, 31 N.W.2d 692 (1948); Thomas, supra, 356 Mich. p. 669, 97 N.W.2d 784, and Jenkins v. Employment Security Comm., 364 Mich. 379, 384, 110 N.W.2d 899 (1961).

Similarly, the Court in Phillips v. Employment Security Comm., 373 Mich. 210, 212, 128 N.W.2d 527 (1964), held that the claimant, a taxicab driver whose license was revoked due to his failure to pay traffic tickets, had by his own actions deliberately committed the acts that resulted in the loss of his license.

While the above cases and others interpreting Sec. 29(a)(1) of the act are difficult to reconcile, both Echols and Phillips, supra, can be distinguished from those cases allowing benefits. First, in each case the claimant failed to maintain prerequisites for hire and continued employment; and, second, the employer in each case would have been in violation of state law had he allowed the claimant to continue working without a license. ³ Both of these conditions are met in the present case.

Although the referee and the Board of Review found that the claimant was not licensed at the time of her hire, and further that a license was not a condition of hire, we agree with the circuit court in holding that such findings are not supported by the record. M.C.L. Sec. 333.17211; M.S.A. Sec. 14.15(17211) provides that no one may engage in the practice of nursing in the State of Michigan unless licensed to do so. By definition this section applies to graduate nurses as well as practical and [139 MICHAPP 532] registered nurses. See M.C.L. Sec. 333.17201(1)(a); M.S.A. Sec. 14.15(17201)(1)(a). It is undisputed that claimant met all the requirements for, and was granted, a temporary license in accordance with applicable state law. M.C.L. Sec. 333.16181; M.S.A. Sec. 14.15(16181) provides that such a license is valid for one year until the results of the next scheduled examination are available.

It is clear, then, that claimant's temporary license was a condition for hire. It is also clear that claimant could not continue in her status as a graduate nurse if her temporary license should expire, nor could she be...