Monday, March 15, 2010

UC - quit v. discharge - imminence of discharge

Consolidation Coal Co. v. UCBR - March 15, 2010 - unreported memorandum opinion

http://www.pacourts.us/OpPosting/Cwealth/out/1583CD09_3-15-10.pdf

The court reversed the UCBR decision granting benefits to the claimant, holding that he quit to avoid the possibility of a later discharge.

Discharge imminent
Generally, where a claimant resigns in lieu of imminent discharge, the situation is considered to be a discharge. See Ford v. UCBR, 498 A.2d 449, 451 (Pa. Cmwlth. 1985) (in order for a quit to be treated as a discharge, a claimant must be “given the choice of quitting or being fired”); UCBR v. Simone, 355 A.2d 614, 615 & n.2 (Pa. Cmwlth. 1976) (Board properly considered claimant’s quit a discharge where claimant was “given the option of resigning or being discharged [and] resigned in order to avoid being fired”).

Discharge possible
However, “where an employee resigns to avoid the chance of being fired, that employee will be treated as having voluntarily quit for the purposes of determining eligibility for unemployment compensation.” Scott v. UCBR, 437 A.2d 1304, 1307 (Pa. Cmwlth. 1981) (emphasis in original). Whether a claimant was discharged or voluntarily quit is a question of law subject to this Court’s plenary review, based on the facts as found by the Board. Wise v. UCBR, 700 A.2d 1071, 1073 (Pa. Cmwlth. 1997). “In deciding whether an employee voluntarily resigned or was discharged, we must examine the facts in their totality.” Pennsylvania Liquor Control Board v. UCBR, 648 A.2d 124, 127 (Pa. Cmwlth. 1994).

In this case, it appears that Employer wished to discharge Claimant, but it is not clear that Employer could have successfully done so. “[T]he existence of a right to appeal [a] threatened discharge render[s] the prospect of discharge less than a certainty.” Hill v. UCBR, 385 A.2d 1032, 1033 (Pa. Cmwlth. 1978). See also Rosenberg v. UCBR, 560 A.2d 292, 294 (Pa. Cmwlth. 1989) (claimant voluntarily quit his employment despite his employer’s expressed desire to discharge him because he had a contractual right to continued employment).

Here, Employer wished to discharge Claimant, but Claimant only faced the possibility of discharge. Claimant, by his own admission, had a right to arbitration; he would only have lost his job if the outcome of arbitration would have been unfavorable to him. Claimant testified that he resigned to avoid the possibility that he would be discharged after arbitration and because he did not have a driver’s license.3 “[O]ne who quits his work merely to avoid the chance of being fired is not entitled to compensation.” Hill, 385 A.2d at 1033. Under these circumstances we hold that, as a matter of law, Claimant voluntarily resigned his employment without good cause to do so.4 We must, therefore, reverse the order of the Board.

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