Quirk v. Premium Homes, Inc., No. ED

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCRAHAN; RICHARD B. TEITELMAN
Citation999 S.W.2d 306
Decision Date24 August 1999
Docket NumberNo. ED
PartiesWanda L. QUIRK, Appellant, v. PREMIUM HOMES, INC., and Division of Employment Security, Respondents. 74690.

Page 306

999 S.W.2d 306
Wanda L. QUIRK, Appellant,
v.
PREMIUM HOMES, INC., and Division of Employment Security, Respondents.
No. ED 74690.
Missouri Court of Appeals,
Eastern District,
Division Two.
Aug. 24, 1999.

Page 307

Stacey A. Meyers, St. Louis, for appellant.

Larry R. Ruhmann, St. Louis, for respondent.

CRAHAN, Judge.

Wanda Quirk ("Employee") appeals the decision of the Labor and Industrial Relations Commission ("Commission") that she was disqualified from waiting week credit or benefits on the ground that she had left work voluntarily without good cause attributable to such work or to her employer pursuant to section 288.050.1. RSMo Cum.Supp.1997. 1 Employee claims the Commission erred in failing to consider the threshold issue of whether the position she left after three days of employment at Premium Homes, Inc. ("Employer") was "suitable employment" as required by section 288.051.1. (1)(c). We agree and reverse and remand with directions.

Before turning to the merits of the appeal, we must first resolve a procedural issue. Employee filed a motion seeking an order of this court requiring the Commission to supplement the record with a document from its file that she claims was, by law, material to the issue presented below and on appeal, even if it was not considered by the Commission in reaching its decision. We ordered the Commission to file the document in a supplemental legal file and further ordered the parties to brief the issue.

The issue arises due to the following undisputed facts: Employee was receiving unemployment compensation when she accepted the job with Employer. She voluntarily resigned that position after just three days at work. The document at issue is the Commission's prior determination that Employee was eligible for unemployment compensation, which also reflects a Commission determination that her prior employer was U.S. Title Guaranty and that she earned a total of $41,782.71 in the last four quarters prior to her unemployment. Employee does not dispute that neither the Commission nor the Appeals Referee ever indicated on the record that this document was considered in deciding her case. However, Employee maintains that, given the undisputed facts, the Commission and the Appeals Referee were obliged by law to do so. Therefore, Employee argues, the document may properly be considered on appeal. We agree.

Section 288.050.1. provides:

1. Notwithstanding the other provisions of this law, a claimant shall be disqualified for waiting week credit or benefits until after the claimant has earned wages for work insured pursuant to the unemployment laws of any state equal to ten times the claimant's weekly benefit amount if the deputy finds:

(1) That the claimant has left work voluntarily without good cause attributable to such work or to the claimant's employer; except that the claimant shall not be disqualified:

....

(c) If the deputy finds the individual quit work, which would have been determined not suitable in accordance with paragraph (a) and (b) of subdivision (3) of this subsection, within twenty-eight

Page 308

calendar days of the first day worked; (emphasis added)

....

Section 288.050.1. (3)(a) provides, in relevant part:

(a) In determining whether or not any work is suitable for an individual, the division shall consider, among other factors, and in addition to those enumerated in paragraph (b) of this subdivision, 2 the degree of risk involved to the individual's health, safety and morals, the individual's physical fitness and prior training, the individual's experience and prior earnings, the individual's length of unemployment, the individual's prospects of securing work in the individual's customary occupation, the distance of available work from the individual's residence and the individual's prospect of obtaining local work; except that, if an individual has moved .... (emphasis added).

Section 288.190.2. provides, in relevant part:

A full and complete record shall be kept of all proceedings in connection with a disputed determination, referred claim, or petition for reassessment. The appeals tribunal shall include in the record and consider as evidence all records of the division that are material to the issues.

It is clear from the provisions quoted above that, before reaching the "just cause" determination, the Commission is first required to consider and decide a threshold issue with respect to claimants who quit their jobs within twenty-eight calendar days of the first day worked. In such cases, the Commission must first decide whether the work would have been determined not suitable in accordance with section...

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