COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia
ACTUARIAL BENEFITS & DESIGN CORPORATION
OPINION BY
v. Record No. 0062-96-2 JUDGE LARRY G. ELDER
DECEMBER 17, 1996
VIRGINIA EMPLOYMENT COMMISSION
AND
ROSEMARY LIPCSEY
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Melvin R. Hughes, Jr., Judge
(D. Shane Smith; Hugh M. Fain, III; Brian R. M.
Adams; Spotts, Smith, Fain & Rawls, P.C., on
brief), for appellant. Appellant submitting on
brief.
Lisa J. Rowley, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee Virginia Employment
Commission.
No brief or oral argument for appellee
Rosemary Lipcsey.
Actuarial Benefits & Design Corporation (appellant) appeals
an order of the Circuit Court of the City of Richmond (trial
court) affirming the Virginia Employment Commission's
(commission) decision that Rosemary Lipcsey is entitled to full
unemployment benefits. Appellant contends that the trial court
erred because (1) the commission failed to make a finding that
Ms. Lipcsey had good cause to resign as required by Code
§ 60.2-618(1), and (2) the commission's statutory interpretation
of Code § 60.2-612(8) was erroneous. For the reasons that
follow, we affirm in part, reverse in part, and remand for
further proceedings.
I.
FACTS
Ms. Lipcsey worked as a nanny for either the president of
appellant or appellant from August 22, 1993 to January 11, 1995.
For the first few months, she cared exclusively for the
president's children and was paid by the president's personal
check. Starting in December, 1993, Ms. Lipcsey began caring for
an additional child of an employee of appellant and her paychecks
were thereafter drawn on appellant's account.
On January 6, 1995, the president became angry with Ms.
Lipcsey for dressing one of her children in a snowsuit that was
intended as a gift for someone else. Ms. Lipcsey was offended at
the manner in which the president had spoken to her and believed
the president should apologize. During a meeting on January 9
concerning the snowsuit incident, the president failed to
apologize and Ms. Lipcsey gave the president two weeks notice of
her resignation.
In the evening of January 10, Ms. Lipcsey informed an
employee of appellant and left a note for the president
indicating that she was sick with the flu and would be absent
from work the following day. The next morning, the president
called Ms. Lipcsey at home and, after a discussion, informed
Ms. Lipcsey that she was discharged from her employment and
that she should not report to work for the remainder of her
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two-week notice period. Although appellant paid Ms. Lipcsey for
January 9 and 10, Ms. Lipcsey was not paid for the remainder of
her notice period.
On January 24, Ms. Lipcsey filed a claim for unemployment
benefits. A deputy of the commission determined that Ms. Lipcsey
was eligible for full benefits effective from January 22.
Following an appeal by appellant, a hearing was held and the
appeals examiner affirmed the deputy's award of benefits. At the
hearing, appellant offered no evidence that Ms. Lipcsey was
discharged for misconduct. Appellant appealed to the commission.
The commission affirmed the decision of the appeals examiner,
finding that Ms. Lipcsey was discharged by appellant two days
after tendering her notice of resignation and that her discharge
was not due to misconduct. The commission also ruled that
"claimant's benefit eligibility is not subject to a maximum
limitation of two weeks because her discharge was not made
effective immediately upon the presentation of her notice to
resign to the employer."
Appellant then filed a petition for judicial review with the
trial court. The trial court affirmed the commission's decision,
holding that the commission's findings of fact were conclusive
and that the commission correctly concluded both that Ms. Lipcsey
was not discharged due to misconduct under Code § 60.2-618(2) and
that the two-week limit of Code § 60.2-612(8) did not apply to
Ms. Lipcsey's case.
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II.
COMMISSION'S FAILURE TO MAKE FINDING REGARDING GOOD CAUSE
Appellant contends that the trial court's affirmance of the
commission's decision was erroneous because the commission failed
to find whether or not Ms. Lipcsey had good cause for tendering
her notice of resignation. Appellant argues that such a finding
is required by Code § 60.2-618(1) before the commission can award
Ms. Lipcsey benefits. We disagree.
We hold that due to the commission's decision in this case
it was not required to make a finding regarding Ms. Lipcsey's
cause for tendering her notice of resignation. The statutory
scheme for determining the qualification of a claimant for
benefits contemplates a multi-staged shifting of the burden of
proof between claimant and employer, and the commission is not
required to determine the issue of a claimant's cause for leaving
in every case. In order to receive unemployment benefits, a
claimant must be eligible under Code § 60.2-612 and not
disqualified under Code § 60.2-618. These code sections deal
with different matters, and "[a] claimant must be eligible for
benefits before his disqualification need be inquired into." Dan
River Mills, Inc. v. Unemployment Comp. Comm'n, 195 Va. 997,
1000, 81 S.E.2d 620, 622 (1954). The claimant has the burden of
proving he or she has met the eligibility conditions of Code
§ 60.2-612. Unemployment Comp. Comm'n v. Tomko, 192 Va. 463,
468, 65 S.E.2d 524, 527 (1951). Once a claimant has met this
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burden, the burden shifts to the employer to prove that the
claimant is disqualified. Shuler v. Virginia Employment Comm'n,
9 Va. App. 147, 149-150, 384 S.E.2d 122, 124 (1989). Under Code
§ 60.2-618(1), a claimant is disqualified if "he left work
voluntarily without good cause." The burden is on the employer
to prove that the claimant left work voluntarily. Id. If the
employer proves that the claimant's separation was voluntary, the
burden shifts again to the claimant to prove that he or she left
employment for good cause. 76 Am. Jur. 2d Unemployment
Compensation § 106 (1992); 81 C.J.S. Social Security and Public
Welfare § 275 (1977). Thus, the issue of a claimant's cause for
leaving arises only if the employer proves that the claimant left
his or her job voluntarily.
In this case, the issue of Ms. Lipcsey's reasons for
tendering her notice of resignation never arose because appellant
failed to prove that Ms. Lipcsey's separation was voluntary. The
commission found that appellant discharged Ms. Lipcsey two days
after she notified appellant of her pending resignation. In any
judicial review of a decision of the commission, the factual
findings of the commission are conclusive "if supported by
evidence and in the absence of fraud." Code § 60.2-625(A).
Although Ms. Lipcsey gave notice of her resignation on January 9,
the commission's finding that Ms. Lipcsey was discharged is
supported by her testimony that appellant's president told her on
January 11, "Rosemary, I don't ever want you in my house again.
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I want you out of my house as of today. I don't ever want you
around me or, me or my children ever again." A claimant who
gives notice of his or her resignation and is fired during the
notice period and is not paid for the remaining portion of the
notice period is considered involuntarily discharged. Shifflett
v. Virginia Employment Comm'n, 14 Va. App. 96, 98, 414 S.E.2d
865, 866 (1992) (citing Boyd v. Mouldings, Inc., Commission
Decision No. 23871-C (Sept. 13, 1984)); cf. Code § 60.2-612(8).
Because appellant failed to prove that Ms. Lipcsey left
voluntarily, the burden never shifted to her to prove good cause
and the commission was not required to make a finding on this
1
issue. We hold that the trial court did not err when it
affirmed the commission's decision that Ms. Lipcsey was not
disqualified from receiving benefits.
III.
INTERPRETATION OF CODE § 60.2-612(8)
Appellant contends that the trial court erred in affirming
the commission's decision that Code § 60.2-612(8) did not apply
to Ms. Lipcsey's case and that Ms. Lipcsey was entitled to full
1
Instead, this case was controlled by Code § 60.2-618(2),
which disqualifies a claimant who "has been discharged for
misconduct connected with his work." Appellant had the burden of
proving that its discharge of Ms. Lipcsey was due to misconduct.
Kennedy's Piggly Wiggly v. Cooper, 14 Va. App. 701, 705, 419
S.E.2d 278, 280 (1992). At the hearing before the appeals
examiner, appellant offered no evidence to establish misconduct
by Ms. Lipcsey. Therefore, the commission's decision that Ms.
Lipcsey was not disqualified from receiving benefits was not
erroneous.
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benefits. Appellant argues that the commission erred when it
interpreted "subsequently" in the statute to mean "immediately"
and decided that Ms. Lipcsey's eligibility was not capped because
she was fired two days after she gave notice of her resignation
to appellant. We agree.
The issue in this case is one of first impression in
Virginia. We must decide whether the cap on benefits contained
in Code § 60.2-612(8) applies only to a claimant who is
terminated immediately after giving notice of his resignation.
Code § 60.2-612(8) is essentially a codification of the
commission's decision in Boyd v. Mouldings, Inc., except that it
places a cap on the amount of benefits a Boyd-type claimant may
receive. In Boyd, the commission held that a claimant who
tendered her notice of resignation, was fired the next day, and
was not paid her salary for the remainder of her notice period,
had been separated involuntarily and was eligible for benefits.
Commission Decision No. 23871-C (Sept. 13, 1984). In 1988, the
General Assembly restricted the holding in Boyd by placing a
two-week cap on the eligibility of claimants discharged before
the effective date of their notice of resignation who would
otherwise be disqualified from receiving benefits. Code
§ 60.2-612(8) states:
An unemployed individual shall be eligible to
receive benefits for any week only if the
Commission finds that:
* * * * * * *
(8) He has given notice of resignation
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to his employer and the employer subsequently
made the termination of employment effective
immediately, but in no case to exceed two
weeks for which he would have worked had the
employee separated from employment on the
date of termination as given in the notice;
provided, that the claimant could not
establish good cause for leaving work
pursuant to § 60.2-618 and was not discharged
for misconduct as provided in § 60.2-618.
(Emphasis added.) After the enactment of Code § 60.2-612(8), the
commission has interpreted it to apply only when the termination
by the employer immediately follows the receipt of a claimant's
notice of resignation, such as when it occurs as "part of the
same conversation or as soon as [the employee's] notice is
discovered left on a supervisor's desk." Office of Commission
Appeals, Virginia Employment Commission, Guide for Effective
Unemployment Insurance Adjudication 27 (1990).
"It is well established that the 'primary objective of
statutory construction is to ascertain and give effect to
legislative intent. A related principle is that the plain,
obvious and rational meaning of a statute is always to be
preferred to any curious, narrow or strained construction.'"
Virginia Employment Comm'n v. Fitzgerald, 19 Va. App. 491, 495,
452 S.E.2d 692, 694 (1995) (quoting Turner v. Commonwealth, 226
Va. 456, 459, 309 S.E.2d 337, 338 (1983)). "'[W]ords and phrases
used in a statute should be given their ordinary and usually
accepted meaning unless a different intention is fairly
manifest.'" Id. (quoting Woolfolk v. Commonwealth, 18 Va. App.
340, 347, 447 S.E.2d 530, 534 (1994)).
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We hold that "subsequently" as used in Code § 60.2-612(8)
means "at any time after notice is given and before the end of
the notice period." This conclusion is dictated by the plain
meaning of the word "subsequently" and the obvious intent of the
General Assembly. First, "subsequently" is ordinarily accepted
to mean "following in time; coming or being later than something
else." Webster's Third New International Dictionary 2278 (3d ed.
1981); accord Commonwealth v. Ellett, 174 Va. 403, 410, 4 S.E.2d
762, 765 (1939). Construing it to mean "immediately" is contrary
to its plain meaning.
In addition, the General Assembly manifestly intended the
two-week cap to apply to all Boyd-type claimants discharged at
any time during their notice periods who are otherwise
disqualified for benefits. This intent is apparent from the
relationship between Code § 60.2-612(8) and the provisions
regarding disqualification in Code § 60.2-618. Code
§ 60.2-612(8) expressly provides that the two-week cap does not
apply to a Boyd-type claimant if claimant's employer subsequently
terminated his or her employment for a reason other than
misconduct and claimant can prove that he or she resigned for
good cause "pursuant to § 60.2-618." 2 In other words, the
General Assembly intended to cast the net of Code § 60.2-612(8)
2
The relevant part of Code § 60.2-612(8) says that the
two-week cap applies "provided, that the claimant could not
establish good cause for leaving work pursuant to § 60.2-618 and
was not discharged for misconduct as provided in § 60.2-618."
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wide enough to catch all Boyd-type claimants who are otherwise
disqualified from benefits under Code §§ 60.2-618(1) and -618(2).
In Boyd, the claimant was fired one day after giving her
notice of resignation to her supervisor but before the expiration
of her notice period. Boyd, Commission Decision No. 23871-C
(Sept. 6, 1984). With this intent in mind, "subsequently" must
mean "after notice is given but before the end of the notice
period" because this is the only interpretation that results in
the application of the two-week cap to all Boyd-type claimants
otherwise disqualified under Code § 60.2-618, instead of the
limited number who happen to be discharged immediately after
tendering their notice of resignation.
Moreover, interpreting "subsequently" in Code § 60.2-612(8)
as suggested by the commission so that the two-week cap applies
only to claimants fired immediately upon receipt of their notice
of resignation would create a loophole not intended by the
General Assembly and would thwart the purpose of the Unemployment
Compensation Act (Act). The purpose of the Act is to provide
temporary financial assistance to employees becoming unemployed
"through no fault of their own." Gantt, 7 Va. App. at 634, 376
S.E.2d at 810. Code § 60.2-612(8) was passed to permit Boyd-type
claimants who were neither allowed to work nor paid for their
notice periods to receive benefits because these claimants were
blameless for their unemployment during this period. Usually,
claimants who tender notice of their resignation without good
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cause are disqualified for benefits after the effective date of
their resignation. Code § 60.2-618(1). However, interpreting
"subsequently" to mean "immediately" would permit claimants who
voluntarily resign to subvert Code § 60.2-618(1) and receive
benefits following their resignations simply because their
employer waited a few hours or days to discharge them.
The commission argues the General Assembly has acquiesced to
its interpretation of Code § 60.2-612(8) because "it has been
uniformly applied for many years in administrative practice."
Dan River Mills, Inc., 195 Va. at 1002, 81 S.E.2d at 623.
However, the commission cites only three of its decisions that
apply its interpretation of Code § 60.2-612(8) in the eight years
since the statute's enactment, only one of which was decided more
than two years ago. Tyson v. West, Crawley & Winn, P.C.,
Commission Decision UI-046906C (Jan. 10, 1995); Huestis v.
Commonwealth, Commission Decision UI-045100C (June 16, 1994);
Hall v. Paul Gordon Associates, Inc., Commission Decision
UI-034206C (Sept 12, 1990). Thus, we cannot say that the
commission's interpretation has been "uniformly applied for many
years." In addition, it is well settled that "[a]n erroneous
interpretation of a statute by those charged with its
[administration] cannot be permitted to override its clear
meaning. Amendments of statutes can only be made by the
legislature and not by the courts or administrative officers
charged with its enforcement." Sanitation Commission v. City of
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Chesapeake, 218 Va. 696, 702, 240 S.E.2d 819, 823 (1978).
We hold that the trial court erred when it affirmed the
commission's decision that Code § 60.2-612(8) did not apply to
Ms. Lipcsey's claim for benefits. As previously stated, Code
§ 60.2-612(8) applies to any claimant who (1) gives notice of his
or her resignation and is then "subsequently" terminated
effective immediately "after notice is given but before the end
of the notice period," and (2) is otherwise disqualified under
Code § 60.2-618(1) or -618(2). Ms. Lipcsey's case initially
falls under Code § 60.2-612(8) because she tendered notice of her
resignation and was subsequently discharged by appellant before
the effective date of her resignation. In addition, she was only
paid for the first two days of her notice period. However, we
are unable at this point to dispose of Ms. Lipcsey's claim
because the commission has not made findings on whether or not
Ms. Lipcsey is otherwise disqualified for leaving work without
good cause under Code § 60.2-618(1). Although we have held that
Code § 60.2-612(8) applies to Ms. Lipcsey's case and the
commission has already concluded that Ms. Lipcsey was not
discharged for misconduct, as we discussed in Part II of this
opinion, the issue of Ms. Lipcsey's reasons for her resignation
did not arise because of the commission's application of Code
§ 60.2-612(8).
For the foregoing reasons, we affirm the decision that Ms.
Lipcsey was qualified for benefits because she was not discharged
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for misconduct, but we reverse the decision that Code
§ 60.2-612(8) did not apply to Ms. Lipcsey's case. Therefore, we
remand this case to the trial court with directions to reverse
the commission in part and remand the claim to the commission for
proceedings to determine whether Ms. Lipcsey's eligibility is
limited to the twelve days of her notice period that were unpaid
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because she cannot establish good cause for leaving pursuant to
Code § 60.2-618(1).
Affirmed in part,
reversed in part,
and remanded.
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