Olechnicky v. Director of Division of Employment Sec.

• Decision Date: 27 April 1950
• Parties: OLECHNICKY v. DIRECTOR OF DIVISION OF EMPLOYMENT SECURITY et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

325 Mass. 660

92 N.E.2d 252

OLECHNICKY v. DIRECTOR OF DIVISION OF EMPLOYMENT SECURITY et al.

Supreme Judicial Court of Massachusetts, Worcester.

April 27, 1950

Argued Jan. 31 1950.

G. G. Morze Gardner, for petitioner.

F. E. Kelly, Atty Gen., (A. M. Cicchetti, Asst. Atty. Gen., and J. A. Brennan Chief Counsel, Division of Employment Security, Boston, with him), for Director of Division of Employment Security.

Before QUA, C. J., and RONAN, WILKINS, SPALDING and COUNIHAN, JJ.

COUNIHAN, Justice.

This is an appeal under G.L. (Ter.Ed.) c. 151A, § 42, as appearing in St 1943, c. 534, § 6, as amended by St. 1947, c. 434, from a decision of a District Court which affirmed a decision of the board of review of the division of employment security in the department of labor and industries denying unemployment benefits under the employment security law.

The claimant alleged that he was laid off for lack of work and claimed unemployment benefits. After hearing the director determined that the claim was invalid for the reason that the 'unemployment is due to discharge and is attributable solely to deliberate misconduct on the part of the claimant in wilful disregard of the employing unit's interest.' G.L.(Ter.Ed.) c. 151A, § 25(e)(2), as appearing in St. 1941, c. 685, § 1. On appeal by the claimant there was a hearing before a review examiner at which apparently only the claimant appeared, and after hearing the examiner affirmed the decision of the director in effect but modified it as to the reason therefor. The examiner made the following findings: 'The employee worked for the employing unit pulling canes for approximately a year and a half. During this period of employment, the employee was absent on an average of two days a month and, at times, notified the employer of his reason for absence. Just prior to his discharge, the employee was absent for two days, during which time he failed to notify the employing unit of the reason for absence. When he reported for duty he was told he had been terminated [sic]. At the hearing, it was the employee's contention that his last absence had been occasioned by illness; that he was suffering with grippe and as he was without means of communication, he had not contacted the employing unit. Questioning of the employee disclosed that he had been attended by his daughter but he had not asked his daughter to contact the employing unit to advise it of the reason for absence because he felt that inasmuch as he had worked for the employing unit a year and a half, he would not be discharged if away from work without explanation for two days. On the employee's testimony, it would not appear that his discharge was for misconduct within the meaning of the Massachusetts employment security law, and it is so found. However, it has been repeatedly held by the board that a termination which is the result of failure on the employee's part to notify the employing unit of his reason for absence, is tantamount to a vountary leaving of employment within the meaning of the law, and it is so found in the instant case.'

The board of review denied the application of the claimant to appeal from the decision of the examiner which thus became the decision of the board of review. G.L. (Ter.Ed.) c. 151A, § 41, as appearing in St. 1941, c. 685, § 1. The claimant duly filed this petition for review in a District Court.

General Laws (Ter.Ed.) c. 151A, § 25, as appearing in St. 1941, c 685, § 1, provides: 'No waiting period shall be allowed and no benefits shall be paid to an individual under this chapter for * * * (e) The period of...