Johnson v. Virginia Employment Com'n

Benton, J.,

concurring.

I join in the portions of the opinion which hold that Mary P. Johnson had good cause to refuse the job offer; therefore, I concur in the judgment reversing and remanding the appeal. For the reasons that follow, I would also hold, however, that the unskilled laborer’s job that was offered to Johnson was not suitable.

In determining the suitability of offered employment, the commission is required to consider the following statutory factors: “the degree of risk involved to . . . health, safety and morals, . . . physical fitness and prior training, . . . experience, . . . length of unemployment and the accessibility of the available work from [the] residence.” Code § 60.2-618(3)(b). These statutory factors must be applied to the circumstances of each case with a recognition that the issue to be determined is suitability of the offered employment, not merely ability or competency of the employee to perform the employment. See Perfin v. Cole, 327 S.E.2d 396, 400-01 (W. Va. 1985). Courts in other jurisdictions have held that even if the employee has experience performing the job that is offered, the job is nonetheless unsuitable when it is not commensurate with the employee’s more recent training and experience. See Hendrickson v. Northfield Cleaners, 295 N.W.2d 384, 387 (Minn. 1980); Unemployment Compensation Bd. of Review v. *455Franklin & Lindsey, Inc., 497 Pa. 2, 6, 438 A.2d 590, 592 (1981); In re Potvin, 132 Vt. 14, 19, 313 A.2d 25, 28 (1973). Thus, it is generally recognized that “in determining suitability of work, prior training and experience are inevitable touchstones of deliberation.” Shay v. Unemployment Compensation Bd. of Review, 424 Pa. 287, 290, 227 A.2d 174, 176 (1967).

The deputy who ruled in Johnson’s favor appropriately determined that the significant applicable factors were that Johnson had “over eight years experience as a production worker and . . . had been unemployed only a short time.” On the other hand, nowhere in either the appeals examiner’s decision or the special examiner’s opinion is there an application of the statutory factors. The appeals examiner merely recited the statutory factors and made a conclusory determination that “despite the difference in the type of work offered as compared to the work previously performed and the slight difference in wages, the offer of employment fulfills the statutory definition of an offer of suitable work.” Thus, in overruling the deputy, the commission essentially made a decision based on ability and competence, not suitability as required by the statute. By discounting “the difference in the type of work offered,” the commission failed to make a determination whether the job was commensurate with Johnson’s experience and training.

Moreover, Code § 60.2-618(3)(b) mandates consideration of the “length of unemployment” as a factor in determining suitability. The short period of employment was a factor that the deputy weighed in Johnson’s favor with respect to the question of suitability of the offered employment. See Annot. 94 A.L.R. 3d 63, 79-83 (1979). Nowhere in its decision does the commission take into account the period of time that Johnson was unemployed. The commission’s failure to do so was error.

In addition, by stating that the commission shall consider the statutory factors in determining suitability, Code § 60.2-618(3)(b) does not preclude consideration of other salient factors bearing on suitability. Depending upon the attendant circumstances of each particular case, other factors may have significant bearing upon the determination whether a particular job offer is suitable. In re Watson, 273 N.C. 629, 634, 161 S.E.2d 1, 6 (1968). In my view, the commission was remiss in failing to consider that Magnox sought to compel Johnson to work as an unskilled laborer and at a reduction in pay, when Johnson’s former position was still availa*456ble and vacant in the semi-skilled production department.

Johnson’s predicament was caused by an unwarranted termination from her original employment, not by the employer’s economic necessity. In discharging Johnson the employer alleged that she had engaged in misconduct. The commission determined, however, that Johnson had not engaged in misconduct as alleged by the employer. The employer’s offer of a new job to Johnson with a cut in pay, with substantially less favorable working conditions and with punitive restrictions on her ability to move to other jobs, while at the same time having available and vacant Johnson’s former job, was inappropriately ignored by the commission in assessing the suitability of the offered job. See Arizona Dept. of Economic Security v. Magma Copper Co., 125 Ariz. 23, 26, 607 P.2d 6, 9 (1980) (reduction in pay, considered together with punitive conditions attached to the offer of new employment, made the offer unsuitable); Dueweke v. Morang Drive Greenhouses, 411 Mich. 670, 678, 311 N.W.2d 712, 714 (1981) (offer of work involving illegal conditions renders the offer unsuitable). These facts are significant because they evince an adverse environment in which the new employment was offered and in which Johnson would have been expected to work. Thus, I believe that these considerations rendered the job “unsuitable in light of the existing Circumstances.” Farrar v. Director of Division of Employment Security, 324 Mass. 45, 49, 84 N.E.2d 540, 543 (1949). See also Magma Copper Co., 125 Ariz. at 26, 607 P.2d at 9; Ball v. Review Board of Indiana Employment Security Division, 149 Ind. App. 494, 494-500, 273 N.E.2d 869, 872-73 (1971).

For these reasons, I believe that the facts mandate a conclusion that the laborer’s job offered to Johnson was unsuitable. Accordingly, I would also reverse the commission as to that issue.