dissenting. I cannot join the majority decision to affirm because there is clear and uncontradicted proof that appellant did not voluntarily leave his job, but was fired. The record shows that: (1) appellant tendered his letter of resignation the morning of June 13, 2002, and in that letter announced that he would leave his position in two weeks; (2) later that morning, the governor’s chief of staff, Brenda Turner, learned that appellant planned to speak to the media about his work; and (3) Turner then faxed a letter to appellant which had the following opening sentence: “As a result of our meeting this morning, I have been directed by Governor Huckabee to terminate you from your position of State Executive CIO effective 12:00 noon today, June 13, 2002.” Therefore, the finding by the Board of Review that appellant voluntarily left his employment lacks substantial evidence.
Further, I would not affirm under Osterhout v. Everett, 6 Ark. App. 216, 639 S.W.2d 539 (1982), and Middleton v. Arkansas Employment Sec. Div., 265 Ark. 11, 576 S.W.2d 218 (1979). The facts of the instant case are distinguishable from the facts of those cases, and the court’s mechanical application of the Osterhout decision is unsound.
In Osterhout, supra, an employee voluntarily gave notice that he would resign his employment nine days later because he needed the money that would be paid out of his unused vacation time. However, the employee attempted to withdraw the resignation prior to his last day of employment. See Osterhout, supra. The Osterhout court held that the employee was not entitled to receive unemployment benefits because he had not become unemployed through no fault of his own, when it was his own action of resignation that set into motion the chain of events that ultimately resulted in his unemployment. See Osterhout, supra. The Osterhout court reasoned that an employee’s resignation is a final, unconditional event, which is not altered by the measure of time between the date that the employee gives notice and the actual date of separation from the job. Osterhout, supra at 218-19, 639 S.W.2d at 540 (quoting Guy Gannett Pub. Co. v. Maine Employment Sec. Comm’n, 317 A.2d 183 (Me. 1974)). The Osterhout court adopted the Gannett court’s rationale that to hold otherwise would subject an employer to the wishes of an indecisive employee, and that the employer must not be placed in “peril” when attempting to hire a replacement or otherwise adjust his work force in response to an employee’s notice to quit.1
The majority also cites Middleton, supra, in which the Arkansas Supreme Court held that where an employee initiates the separation, the employer may accelerate the termination without liability for an involuntary discharge. See Middleton, supra (affirming the employer’s acceleration of employee’s termination date after she informed the employer that she would be looking for another job, reasoning that the Board could have found the employee said, “I’m quitting as soon as I’m able to find another job”). The Middleton court noted that the term “voluntary leaving” has been expanded to include a voluntary action indicating an intention to terminate employment.
As the majority correctly states, the Board’s findings of fact must be supported by substantial evidence. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). In the present case, the Board cited Middleton, supra, stating:
[T]he evidence establishes that he tendered a letter of resignation. Although the employer may have accelerated the date and time of his separation, this does not alter the fact that the impetus leading to the separation came from the claimant and not the employer. [Citation omitted.] Thus, the Board finds that the claimant voluntarily left his last work; he was not discharged.
Despite the majority’s assertion, this is not “exactly the situation we were discussing in Osterhout.” There was no evidence in this case that appellant submitted his resignation in order to receive a pecuniary gain, or attempted to rescind his notice, as the employee did in Ousterhout. Nor was this like Middleton, where the employee informed her employer that she would be leaving at some unspecified date. Thus, unlike the situations in Osterhout and Middleton, there was no threat of uncertainty or instability for the governor’s workforce.
To the contrary, appellant’s resignation letter and his request for direction of his duties over the next two weeks established his clear intent and explicit desire to work for the full two weeks. There would be no question of whether appellant’s departure was voluntary if he had been allowed to work the full two weeks, as he desired to do. Nor would there be any question if the governor’s office had asked appellant to make his resignation effective as of the day the resignation was submitted, and appellant had complied. However, the plain truth is that the governor’s office chose to terminate appellant, rather than accept his resignation. Where as here, the facts show that the employee gave notice and intended to work throughout the notice period, the concerns noted in Oster-hout and Middleton simply are not present.
Further, the majority’s mechanical application of the Oster-hout decision is unsound. Under Osterhout, where an employee has given notice, he is deemed to have become unemployed through his own fault, and therefore, is ineligible to receive unemployment benefits. The rationale is that, because the employee has initiated the separation, the employer should be allowed to merely accelerate the separation. While this reasoning is facially appealing, the effect on the employee-employer relationship is more far-reaching than merely accelerating the separation.
Under today’s decision, an employer may consider an employee’s separation date to be the date that notice is given, regardless of the date that the employee intends to leave or regardless of the employer’s conduct. That is, an employer may accelerate the date of separation and discharge an employee prior to the date that the employee intended to quit, and the employee is still considered to have voluntarily left as of the date the employer discharged him or her, regardless of the employer’s behavior. The focus of the inquiry improperly shifts from the facts and circumstances of each case to the date that notice is given; thus, the analysis becomes temporally based, rather than factually based. In addition, judicial assent to an employer to fire an employee who has given notice, without consideration of the attendant circumstances, enables the employer to do what it could never do in the absence of notice: to fire a worker without liability to pay unemployment benefits for the employee’s involuntary discharge.
The majority states that “the Board clearly could have viewed Bradford’s resignation letter as a clear and unequivocal manifestation of his intention to leave his job.” This is correct. Obviously, a letter of resignation or giving notice by any other method evinces a clear and unequivocal intent to terminate one’s relationship with an employer. However, even under Middleton, the question is not merely, “Did- the employee engage in a voluntary action indicating an intent to terminate employment?” Mere proof of an intent to quit does not constitute quitting a job.
The majority’s decision now allows the Board to conclude that by submitting a letter of resignation an employee is voluntarily leaving work. The problem with this reasoning is readily apparent: it is conclusory. Simply stated, the fact that appellant submitted a resignation letter did not, ipso facto, mean that his subsequent unemployment was voluntary. How could appellant’s unemployment be voluntary if he was fired? How could the letter from Brenda Turner, Governor Huckabee’s chief of staff, stating, “I have been directed by Governor Huckabee to terminate you from your position . . . effective 12:00 noon today, June 13, 2002,” mean that appellant was not fired? How could appellant resign and be fired from the same employment?2
Whether an employee voluntarily leaves his or her employment when an employer accelerates the date of separation is a question of fact for the Board to decide. See Middleton, supra. However, the majority’s application of Osterhout transforms that issue of fact into an issue of law, by holding that an employee’s giving notice to leave employment at a specified future date is tantamount to the employee voluntarily quitting work as of the day the resignation is submitted. An employee who quits without notice may draw unemployment benefits if he can show that he involuntarily left for good cause associated with the work. See Ark. Code Ann. § 11-10-512 (Repl. 2002). However, under the decision announced today, an employee who gives notice will never be able to establish those proper circumstances. In short, employees will be penalized for giving notice. This does not comport with the purpose of our unemployment laws to protect employees from economic hardship caused by involuntary loss of employment. Moreover, it makes no sense.
The employer cannot have it both ways. If the employer’s conduct during the notice period is relevant to determining whether the employee is voluntarily leaving employment, then that factual determination must not turn solely on whether the employee submitted a letter of resignation or otherwise provided notice. If the employer’s conduct during the notice period is not relevant, then the employee’s conduct should not be used, as it was here, as a justification to automatically allow the employer to accelerate the employee’s date of separation without liability for the employee’s involuntary discharge.
My position does not undermine the employment-at-will doctrine; nor does it mean that an employer would be required to retain an employee who has tendered his resignation or would be unable to fire an employee at will. However, it would require that the Board of Review make a factual determination based on all of the evidence, not merely rush to conclude that a worker voluntarily left his job merely because he gave notice of the intent to do so at a future date and despite all proof of the employer’s conduct. Here, where appellant was fired, it is unnecessary to determine whether he voluntarily left his job for good cause. Because the record clearly demonstrates that appellant was fired by the governor’s office, I respectfully dissent from today’s holding that affirms the Board’s decision to deny appellant unemployment benefits.
The Osterhout court’s concern for an employer’s “peril” would appear to be unwarranted in view of today’s decision. If an employer may accelerate an employee’s date of termination regardless of circumstances, and with no consequence to the employer, then an employee has no motivation to give the employer any notice before leaving. Nothing in the majority opinion sheds light on how the prospect of workers leaving their jobs without giving notice works a benefit to employers whose “peril” appears to have motivated the holding in Osterhout.
Of course, one can also conceive of situations where a resignation notice is anything but voluntary, as when the employee is given the choice of resigning or being fired. And in the case of the “whistle-blower” employee whose efforts expose an employer to unwanted scrutiny or criticism, it is quite conceivable that such a resignation notice would be both involuntary and with good cause connected to the work. Today’s decision appears to gloss over these realities by slavish application of the holding in Osterhout.