Employment Security Commission v. Children's Hospital

T. M. Burns, P.J.

(dissenting). I dissent because I do not believe that the claimant voluntarily failed the nursing board’s examination. The law relevant to this issue is quite clear — an employee who leaves work voluntarily without good cause attributable to the employer is disqualified from receiving unemployment compensation benefits. MCL 421.29(l)(a); MSA 17.531(l)(a).

The claimant was terminated from her employment because she failed the nursing board’s examination and, therefore, did not receive a license which was necessary for her to continue in her position at Children’s Hospital. Since the claimant was terminated because she failed the examination, the primary issue is whether she voluntarily failed the examination. This Court in Laya v Cebar Construction Co, 101 Mich App 26; 300 NW2d 439 (1980), defined "voluntary” as used in the statute:

"We hold that the word 'voluntary’ as used in section 29(l)(a)(l) must connote a decision based upon a choice between alternatives which ordinary men would find reasonable — not mere acquiescence to a result imposed by physical and economic facts utterly beyond the individual’s control.” 101 Mich App 32, quoting Lyons v Employment Security Comm, 363 Mich 201, 216; 108 NW2d 849 (1961) (Edwards, J., dissenting).

Applying this test, I am unable to conclude that the claimant was faced with a choice between passing and failing the examination. Had she been *534faced with that choice, I am sure that the claimant would have chosen to pass. While it is possible that someone may choose to fail the examination by not studying for it or by intentionally marking the wrong answers, such a situation is highly improbable, and there is no indication that the claimant took such steps in the instant case.

I do not agree with the majority’s application of Echols v Employment Security Comm, 380 Mich 87; 155 NW2d 824 (1968), and Phillips v Employment Security Comm, 373 Mich 210; 128 NW2d 527 (1964). The majority correctly notes that in both those cases the claimants failed to maintain prerequisites for continued employment and that the employer would have been in violation of state law had the claimants continued to work. These general similarities, however, do not make Echols and Phillips applicable. Further analysis shows that the claimants in Echols and Phillips were fired for losing their driver’s licenses due to violations of traffic ordinances. In Echols, the claimant lost his license because he received 12 points on his driving record for traffic violations. In Phillips the claimant failed to pay a traffic fine. In those cases, the claimants were faced with a choice between alternatives that ordinary persons would consider reasonable. They could have avoided their dilemma by complying with the law. Instead they chose to violate the law and suffered the consequences. In the instant case, the claimant could only choose to take the examination and put forth her best effort to pass it. The claimant, however, could not decide whether she passed the examination. This decision is solely within the discretion of the examination’s administrators.

I recognize that the majority raises some compelling public policy questions. I feel however that *535the public policy arguments should not be used to avoid the clear language of the statute as previously interpreted by this Court. I would find that claimant did not voluntarily leave her job and would reverse the circuit court.