MacDonald v. Department of Employment Security

Hill, J.

dissenting. On March 14, 1977, claimant notified her employer that she planned to quit in two weeks and that she was giving two weeks’ notice as a courtesy. The employer responded that she could remain in employment, but if she was going to leave she must leave immediately. Claimant persisted in giving notice, whereupon the employer refused to let her work further. A majority of this Court, agreeing with the appeals referee and the Employment Security Board, find that claimant has thereby voluntarily quit her job without good cause attributable to her employer. 21 V.S.A. § 1344 (a) (2) (A). I disagree.

In this cause, claimant’s loss of job was caused by her persistent violation of the employer’s stated policy of refusing to accept notice. This is not a voluntary quit; rather it is a discharge for misconduct, for failure to abide by the rules *187of the employer. This situation is no different from one where, for example, an employee is discharged for failure to comply with an employer’s policy requiring the use of appropriate safety equipment on the job, or for chronic lateness.

The majority expresses concern that to find a discharge here would allow the employee unilaterally to write a new contract, by implying a term granting the employee the right to give two weeks’ notice. I do not agree that a finding of discharge would have this effect.

When claimant insisted that she was leaving in two weeks, although apprised of the consequences, the employer was justified — as a matter of contract law — in refusing to let her work further. We are here concerned, however, not with the rights of claimant and her employer under their employment contract, but with claimant’s status under the Vermont unemployment compensation law. The contract rights of claimant and her employer would not be affected by a finding that — as a matter of unemployment compensation law — claimant was discharged.

The proper question for the appeals referee and the Board was whether the discharge was for misconduct of the type that disqualifies claimant from benefits. See 21 V.S.A. § 1344 (a) (1). To disqualify a discharged employee from benefits, her misconduct must demonstrate substantial disregard for the employer’s interests. In re Therrien, 132 Vt. 535, 537, 325 A.2d 357, 358 (1974). Giving two weeks’ notice as a courtesy does not constitute such substantial disregard. Cf. id. (employee’s absences from work for good cause, with appropriate notice to employer, while perhaps grounds for discharge, do not disqualify an employee from benefits). Therefore, I would reverse the decision of the Employment Security Board. I would hold that, as a matter of law, claimant was not disqualified from receiving benefits by reason of voluntary quit or misconduct for the two week notice period during which she was willing and able to work, but prevented from so doing.