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06/01/76 ROBERT G. LADEAU v. DEPARTMENT EMPLOYMENT

June 1, 1976

ROBERT G. LADEAU
v.
DEPARTMENT OF EMPLOYMENT SECURITY



Claim for workmen's compensation. Employment Security Board, Huber and Hill, members, present. Reversed and remanded.

Present: Barney, C.j., Smith, Daley, Larrow and Billings, JJ.

SYLLABUS BY THE COURT

1. Unemployment Compensation--Employment Termination--By Employer Without Good Cause

Where employee of thirty years, who made oil deliveries and service calls, took great pride in the vehicle assigned to his use and had several times objected to his employer about the disarray of parts and tools when others were allowed to use it, and during one such objection employer said he would use his vehicle as he saw fit and employee said he would rather quit before he would run the vehicle in that condition and employer said "Okay you can pick up your two weeks' severance pay", employee was fired and did not quit and could not be disqualified from unemployment compensation benefits on the ground of voluntary termination of his job. 21 V.S.A. § 1344(a)(2)(A).

2. Words and Phrases--Severance Pay

Dismissal or severance pay is money paid in addition to back wages to an employee on termination by the employer for reasons not attributable to the employee, and court would take judicial notice that absent a contractual or statutory provision such is the usage of the labor market.

The opinion of the court was delivered by: Larrow

Appellant Robert G. Ladeau was employed for some thirty years by R. E. Roy, Inc., of Woodstock, Vermont, in making oil deliveries and service calls. The circumstances surrounding termination of that employment on May 5, 1975, give rise to this appeal. His claim for unemployment benefits was made subject to a disqualification (ending July 5, 1975, because the termination occurred in a period of high level unemployment) under 21 V.S.A. § 1344(a)(2)(A) , for leaving his employment voluntarily without good cause attributable to the employer.

The essential question presented for determination, in common parlance, is whether the appellant quit his job or was fired. The Board decided this question against the appellant, and imposed the disqualification. Although there is indeed serious question whether some of its findings of fact are fully supported by the evidence, and whether undisputed matters were found as fully as appellant was entitled to have them found, we do not reach these considerations. In our view, the findings which were made do not support the disqualification, and we reverse.

[1] The appellant took great pride in a service vehicle assigned to his use. He had objected to the employer on several occasions about its use by others for non-business purposes, with resulting disarray of parts and tools. He found such disarray on May 5, 1975, and spoke to the employer about it at the close of work, when the employer again told him to leave it for use by another. He objected to such use, and was told the employer would use his truck as he saw fit. Claimant then told the employer he "would quit before I would run it in that condition." The employer remarked, "Okay, you can pick up your two weeks' severance pay." The claimant then left, and did not return the following day.

On these facts, as found, the Board concluded that appellant voluntarily left the employ without good cause attributable to the employer "when he took precipitate action not expected of a normally prudent individual and threatened to quit his job; when his remarks were deliberate and intended to provoke his employer to take some action; and when his employer's request was not shown to be capricious or unreasonable." We disagree. The facts found do not support the Conclusion.

We accord strong credence to the "recognized competence and expertise" of a regulatory board. Ellis v. Department of Employment Security, 133 Vt. 533, 536, 346 A.2d 221 (1975). But we cannot extend such credence to a decision which flies in the face of common custom and usage in the employment field. The claimant's remarks were indeed deliberate and intended to provoke action by the employer. But that action was not, as the Board's Conclusion would infer, a termination of the employment. Precipitate as the remarks may have been, it is clear that the "action" which the "long time, trusted employee" intended to "provoke" was termination of the practice of letting the service vehicle be used for pleasure by others inconsiderate of his tools and equipment. We cannot agree that such a protest was, as the Board seems to construe it, a deliberate effort to get himself fired. Nor can we agree that the protest, as framed, was "not to be expected" of an employee with thirty years' standing and resulting trust.

[2] Even beyond these considerations, however, we consider it apparent that the employer, whatever his now professed intent, knew full well that the claimant was not quitting his job; he was firing him. Dismissal, or severance pay, is the payment of a sum of money in addition to back wages or salary to an employee on termination by the employer of the employment relationship for reasons not attributable to the employee. 53 Am.Jur.2d Master and Servant § 81, at 154 (emphasis supplied). We judicially notice, as the Board should have, that absent some contractual or statutory provision, the usage of the labor market makes such payment incident to a firing without cause given by the workman, but not incident to a voluntary quit. The employer's present claim of a quit is totally inconsistent with his on-the-spot offer of severance pay.

We recognize that a finding of intent is a difficult one to make, and that there is often a narrow line, dependent on intent, demarcating a quit from a firing. But we do not feel that the employer's present statement of intent can be permitted to negate the totally ...


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