dissenting.
There is a difference between quitting and being fired from a job. Only in the regulatory world do the concepts get confused. *461The fact is that these two claimants didn’t quit their jobs. They were fired after they couldn’t get to work for two days because they had lost their ride. No reading of this record will disclose evidence to support a contrary finding. See Zielenski v. Bd. of Review, Div. of Emp. Sec., 85 N.J.Super. 46, 54 (App.Div.1964). Their supervisor, who described one as a “very hard worker and invaluable employee,” told it as it was. When asked whether claimants were “discharged or did they leave voluntarily,” he answered:
A They didn’t leave voluntarily. I didn’t have any choice. I have a building to take care of and if an employee doesn’t come in, two or three days at a clip, I don’t have any choice. Do you want me to say yes, I fired them? I had no other choice, which of course they had no control over it [sic].
The supervisor knew he had fired the claimants.1 In fact, they testified that he was the one who told them to apply for unemployment insurance. These claimants were hardworking building maintenance employees. They wanted work, not a handout. Had they been given a few days to arrange transportation, they might have been able to return to work. Under these circumstances, only a legal fiction of Kafkaesque subtlety can convert their discharge into a voluntary quit.
Of course I recognize that unemployment compensation benefits should not be available to a worker who, as a matter of choice, leaves a job because it is inconvenient to commute or the worker has moved. White v. Bd. of Review, Div. of Emp. Sec., 146 N.J.Super. 268 (App.Div.1977); Morgan v. Bd. of Review, Div. of Emp. Sec., 77 N.J.Super. 209 (App.Div.1962). That was not the case here. The Appellate Division viewed the matter properly when it concluded in Self’s case:
*462We view the matter differently, however, when as here the change in circumstances renders the ability to get to work not more difficult but, rather, virtually impossible of achievement. If there are no reasonably feasible means of traveling to work, then the employee has no choice of whether or not to go to work. And without choice, one’s action is, by definition, not voluntary but compelled. Claimant here did not voluntarily quit her job. She was unable to get to it for reasons for which she was not responsible and, as a matter of fundamental fairness, for which she should not be held responsible. [182 N.J.Super. at 363-64],
Nor in the Patterson case would I disqualify the claimant because of her use of the word “quit” at her hearing. More telling and realistic was her letter to the Board of Review:
The next day I called Mr. Klank again and he informed me to go down and file for unemployment. Now I ask you does that sound as though I quit on my own to you, or not. How can I go back to a job when the supervisor tells me I am no longer needed and then puts on the form sent to him from unemployment Quit.
I would not take comfort in the number of jurisdictions that appear to hold claimants disqualified for lack of transportation. I would rather stand with the Supreme Judicial Court of Massachusetts, which has interpreted its own statute in this way:
[T]he District Court was in error in ruling that Mrs. Miller’s departure was voluntary. As the board found, “The claimant exhausted all reasonable means to preserve her employment, indicating her desire and willingness to continue her employment; that when all alternative courses of action to find other transportation or change to another shift were unsuccessful, she involuntarily left her work.” She is therefore not subject to disqualification .... [Raytheon Co. v. Director of Div. of Emp. Sec., 364 Mass. 593, 597, 307 N.E.2d 330, 333 (Mass.Sup.Jud.Ct.1974) ].2
*463The majority’s decision is also inconsistent with this Court’s analysis in DeLorenzo v. Bd. of Review, Div. of Emp. Sec., 54 N.J. 361 (1969). In that case the Court affirmed the Board’s conclusion that in some circumstances failure to work because of illness does not constitute a “voluntary” leaving of work.
The Board of Review does not now hold that a failure to report for work because of illness (not attributable to the work) is itself a voluntary quit which disqualified the employee for benefits after recovery, even though he seeks to return to the job and is refused work.
The Board now holds that when an employee becomes ill and does those things reasonably calculated to protect the employment and, notwithstanding that she is not reinstated, there is no voluntary leaving of work. In these matters involving separation from employment for health reasons, the Board now holds that the disqualification arises only upon a finding that the employee, in fact, decided to terminate the employment because the work duties are detrimental to an existing physical condition or state of health which did not have a work connected origin. [Id. at 364],
It is anomalous to observe that if these two employees had been spending their days at the racetrack instead of at work, and had been terminated for that as misconduct under N.J.S.A. 43:21-5(b), they would have been disqualified from benefits for only five weeks.
The Appellate Division correctly concluded that an extraordinary case had been presented. Denying these claimants the remedial benefits of the Unemployment Compensation Law would subvert its purpose and deny protection against the adverse impact of involuntary unemployment. Justice Pashman once reminded us that cases that fly in the face of legislative purpose, humanity and common sense are “poor case[s] for deference to rigid rule application.” Dougherty v. Human Services Dep’t, 91 N.J. 1, 18 (1982) (Pashman, J., dissenting).
For reversal — Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER and POLLOCK — 5.
For affirmance —Justice O’HERN — 1.
lncluded in the claimants’ Appellate Division Appendix is a memorandum dated March 29, 1980 (after the Board of Review Hearing) in which the supervisor wrote:
To Whom It May Concern:
Subject: Anne Marie Self
This is to inform you that Anne Marie Self is no longer in the employ of J & J Private Contractors. She has been terminated, fired. (Emphasis in original).
See also Aronson v. Montefiore Hosp. & Medical Center, 36 N.Y.2d 891, 372 N.Y.S.2d 644, 334 N.E.2d 594 (N.Y.Ct.App.1975), rev’g on dissent, 43 A.D. 2d 628, 349 N.Y.S.2d 176 (N.Y.App.Div.1973) (employee granted benefits where she resigned after three episodes of physical abuse on subway en route to work [factual determination of “good cause” by Board should be upheld]); Bateman v. Howard Johnson Co., 292 So.2d 228 (La.Sup.Ct.1974) (cited by majority); Baxter & Farrell, “Constructive Discharge — When Quitting Means Getting Fired,” 7 Employee Reí. L.J. 346, 347 (Winter 1981-82) (“... courts examine the circumstances surrounding the employee’s decision to quit or resign. If the decision was forced on the employee, the courts will deem it a constructive discharge and will treat the employee as if he or she had been explicitly and directly discharged....”).