Decision Number 1051-BR-82 - Voluntary Quit - Section 8-1001 - Maryland Unemployment Decisions Digest - Appeals

BOARD OF APPEALS

DECISION

Issue: Whether the Claimant failed, without good cause, to accept suitable work within the meaning of Section 6(d) of the Law.

- NOTICE OF RIGHT OF APPEAL TO COURT -

YOU MAY FILE AN APPEAL FROM THIS DECISION IN ACCORDANCE WITH THE LAWS OF MARYLAND. THE APPEAL MAY BE TAKEN IN PERSON OR THROUGH AN ATTORNEY IN THE SUPERIOR COURT OF BALTIMORE CITY, OR THE CIRCUIT COURT OF THE COUNTY IN MARYLAND IN WHICH YOU RESIDE.

THE PERIOD FOR FILING AN APPEAL EXPIRES AT MIDNIGHT August 22, 1982.

APPEARANCES

REVIEW ON THE RECORD

Upon a review of the entire record, the Board of Appeals affirms the decision of the Appeals Referee in regard to Section 6(d) of the Law, although the Board does not agree with the seasoning of the Appeals Referee with regard to Section 6(d).

In addition, the Board of Appeals concludes that the appropriate penalty in the circumstances of this case is a penalty imposed under Section 6(a) of the Law because the Claimant voluntarily quit his employment, without good cause.

The Board of Appeals finds as facts that the Claimant worked from September of 1976 until December 22, 1981 for the Baltimore Gas & Electric Company. He was employed as a parts delivery driver. At the time of his termination, he was making $328.70 per week.

The Claimant was injured on the job in October of 1980. The Claimant was entitled to 130 full days of sick pay. Between January 21, 1981 and December 22, 1981, the Claimant worked only 41 days and was paid the rest in sick pay.

In November of 1981, approximately 30 days before the expiration of his sick pay benefits, the Claimant was offered a clerical job paying the exact same salary as his job as a parts delivery driver. The Claimant at the time was unable to resume his occupation as parts delivery driver, but he was able to fulfill the duties of a clerical person. The job was from 8:00 a.m. to 4:45 p.m., Monday through Friday, at the G & E Building downtown. The Claimant refused this transfer, contending that he was losing money by accepting the same salary because there was not overtime available in the clerical position.

In fact, the Claimant had received no overtime pay during the nine months he was on sick leave, he had never been specifically promised overtime as a parts delivery driver and he would have originally taken his old job even without overtime.

CONCLUSIONS OF LAW

The Board concludes that the Claimant cannot be disqualified under Section 6(d) of the Law for refusing available, suitable work. The Board has consistently held that this penalty is applicable only while a person is in claim status, filing claims. This is not the case here. The Claimant was offered a transfer to the clerical position while he was still employed at the Baltimore Gas & Electric Company.

The facts of this case, however, show that the Claimant voluntarily quit his job, without good cause, within the meaning of Section 6(a) of the Maryland Unemployment Insurance Law. The Claimant, who was incapacitated from performing his former job, refused to transfer to a job which he was capable of performing and which paid the exact same pay. The Board does not consider the differences concerning overtime to be significant, especially in the light of the facts developed in this case.

Since the Claimant was totally incapacitated from performing his former duties, his refusal of the transfer to duties which he was capable of performing was a voluntary quit. Under the circumstances of this case, the Employer's offer of a transfer to a new position was the only reasonable course which the parties could take. The Claimant, by refusing to accept the only reasonable alternative which would allow him to keep his job, voluntarily quit his job, without good cause, within the meaning of Section 6(a) of the Maryland Unemployment Insurance Law. The Board is unable to find any serious, valid circumstances which might justify the imposition of less than the maximum penalty in this case.

DECISION

The Claimant did not refuse available, suitable works within the meaning of Section 6(d) of the Maryland Unemployment Insurance Law. No disqualification is imposed under Section 6(d) of the Law for the week beginning November 21, 1981. With regard to this section of the Law, the decision of the Appeals Referee is affirmed.

The Claimant voluntarily quit his job, without good cause, within the meaning of Section 6(a) of the Maryland Unemployment Insurance Law. He is disqualified from receiving benefits for the week beginning November 20, 1-981 and until he becomes re-employed, earns ten times his weekly benefit amount ($1,050) and thereafter becomes unemployed through no fault of his own.

The decision of the Appeals Referee with regard to Section 6(a) of the. Law is reversed.

Thomas W. Keech, Chairman
Maurice E. Dill, Associate Member

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COPIES MAILED TO:
CLAIMANT
EMPLOYER

Steve Kirsch, Esquire
UNEMPLOYMENT INSURANCE - BALTIMORE

LOWER APPEALS DECISION

DECISION

Issue: Whether the claimant failed, without good cause, to accept available, suitable work within the meaning of Section 6(d) of the Law.

- NOTICE OF RIGHT TO FURTHER APPEAL -

ANY INTERESTED PARTY TO THIS DECISION MAY REQUEST A FURTHER APPEAL AND SUCH APPEAL MAYBE FILED IN ANY EMPLOYMENT SECURITY OFFICE, OR WITH THE APPEALS Division, ROOM 515, 1100 NORTH EUTAW STREET, BALTIMORE, MARYLAND 21201, EITHER IN PERSON OR BY MAIL.

THE PERIOD FOR FILING A FURTHER APPEAL EXPIRES AT MIDNIGHT ON June 14, 1982.

APPEARANCES

FINDINGS OF FACT

After the claimant's separation from Baltimore Gas and Electric Company where he worked for five years, he filed a claim for benefits which had become effective March 21, 1982. During the course of the claimant's employment, he had been a Delivery Driver and was earning approximately $328.70 at time of separation from the employment which was on or about December 22, 1981. Sometime in October, .1980 the claimant had become injured and he missed time. He was on sick leave. About November, 1981, the employer offered the claimant a job in clerical capacity at $328.70 a week, hours 8 a.m. to 4 p.m. The claimant did not take this job. He maintained that it was different from the work which he had been doing.

CONCLUSIONS OF LAW

It must be concluded under the circumstances and on the basis of the credible evidence available that the claimant did not fail without good cause to apply for or to accept available suitable work under Section 6(d) of the Maryland Unemployment Insurance Law. Consequently, the determination of the Claims Examiner which denied benefits to the claimant shall be reversed.

DECISION

The unemployment of the claimant was due to a non-disqualifying reason within the meaning of Section 6(d) of the Maryland Unemployment Insurance Law. He is eligible for benefits for the week' beginning November 20, 1981 if otherwise eligible under the Law. The determination of the Claims is reversed.

M. Zahner
APPEALS REFEREE

Date of hearing: May 17, 1982
Cassette: 2233
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COPIES MAILED TO:
Claimant
Employer
Unemployment Insurance-Baltimore

Steve Kirsch, Esquire
Allen L. Fox, P. A.