Jenkins v. Department of Employment Sec., 186-76

• Decision Date: 05 April 1977
• Docket Number: No. 186-76,186-76
• Citation: 373 A.2d 533,135 Vt. 210
• Parties: Linda D. JENKINS v. DEPARTMENT OF EMPLOYMENT SECURITY.
• Court: Vermont Supreme Court

Page 533

373 A.2d 533

135 Vt. 210

Linda D. JENKINS v. DEPARTMENT OF EMPLOYMENT SECURITY.

No. 186-76.

Supreme Court of Vermont.

April 5, 1977.

Kenneth M. Appel, Vermont Legal Aid, Inc., St. Johnsbury, for plaintiff.

David M. Wilson, Montpelier, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

HILL, Justice.

This is an appeal from a decision of the Vermont Employment Security Board disqualifying the claimant-appellant from partial unemployment compensation benefits for a period of three consecutive weeks due to her failure to satisfy the Board's interpretation of 21 V.S.A. § 1343(a)(3), 'available for work' requirement, for a portion of the total part-time work offered her in each of those weeks. Though the questions certified for our review pursuant to V.R.A.P 13(d) are framed exclusively in terms of evidentiary support for the Board's ruling, the real issue at stake here involves the interpretation and application to be given the 'available for work' condition in the partial unemployment situation.

The record shows that for several months appellant had been a full-time employee of Maple Grove, Inc. of St. Johnsbury, Vermont, until a scarcity of work required that she be placed on an 'on-call' basis in which she could be summoned for work two or three days a week at her usual hourly rate. This 'on-call' arrangement rendered the appellant 'partially unemployed' as defined by 21 V.S.A. § 1301(9)(B) and therefore eligible for benefits to be computed in accordance with 21 V.S.A. § 1339.

While employed on this 'on-call' basis, the appellant missed in each of the three weeks in question a certain number of hours of part-time work made available to her by Maple Grove, Inc. In week one, appellant missed eight out of twenty hours due to a dead automobile battery which prevented her from reaching work. In week two, appellant lost one and one-quarter hours from a total of twenty because of a flat tire. In the third week, the appellant was absent for four of the twenty-four hours available to her because her vexatious automobile would not start. The temperature was -20 F. No complaint was ever mand by the employer as to these absences or as to the appellant's actual work performance. There is no dispute that appellant's absences from work were in good faith and beyond her control.

As a result of appellant's reported inability to perform all of the part-time work available to her during each of these three weeks, the claims examiner determined that she was disqualified from receiving any partial unemployment benefits because she failed to meet the 'available for work' requirement in each week. This decision was upheld by the appeals referee, whereupon the appellant filed an appeal with the Employment Security Board. Before the Board, appellant argued that the correct interpretation of the 'available for work' condition would require that the partial unemployment benefits due her be computed by including as wages earned the wages she would have received had she not been absent for good cause. In its initial decision, the Board accepted appellant's position and ordered that the determination of the appeals referee be modified accordingly. However, the Board reconsidered its order and issued a 'corrected decision' in which it sustained the appeals referee and found appellant to have been unavailable in each of the weeks and thus totally disqualified from unemployment compensation benefits.

As a practical matter, the present dispute concerning the concept of 'available for work' as applied in the context of partial unemployment arises as a...