Ennis v. Employment Division , 37 Or. App. 281 ( 1978 )

587 P.2d 102 (1978) 37 Or.App. 281

Susan M. ENNIS, Petitioner,
v.
EMPLOYMENT DIVISION, Raymond P. Thorne, Administrator, and Western Bank, Respondents.

No. 78-AB-445A; CA 11021.

Court of Appeals of Oregon.

Argued and Submitted September 28, 1978. Decided December 4, 1978.

Julie A. Stevens, Coos Bay, argued the cause for petitioner. With her on the brief was Oregon Legal Services Corp., Coos Bay Regional Office, Coos Bay.

James A. Redden, Atty. Gen. and Walter L. Barrie, Sol. Gen., Salem, waived appearance for respondent Employment Division.

G. Jefferson Campbell, Jr., and Newhouse, Foss, Whitty & Roess, Coos Bay, filed brief for respondent Western Bank.

Before SCHWAB, C.J., and THORNTON, TANZER^[*] and BUTTLER, JJ.

THORNTON, Judge.

Claimant appeals from a denial of unemployment compensation benefits, contending that the referee and Employment Appeals Board erred in finding that she left work voluntarily.

When claimant began work in a bank in May 1977, the operations officer either promised her a raise in three months, which he had no authority to do, or told her she would be eligible for a raise after a three-month evaluation, which was in error, because she was in a class of employes which was to be evaluated generally only after six months on the job. She was evaluated after three months anyway and told that no raise was forthcoming. On August 17, 1977, she tendered her resignation, to be effective September 16, 1977. The employer voiced no immediate objection to this. However, on August 31, 1977, the branch manager of the bank paid her for days already worked and told her not to return, as her services were no longer needed.

When asked why she had given an entire month's notice of her intention to quit, claimant admitted that it was because she was not mad enough to quit immediately. Rather, she wanted time to decide whether she really wanted to quit; she did not want to leave while other workers were on vacation; and she would have time to decide if the bank asked her to stay. Two days after she gave notice the operations officer asked her to stay, but without the raise she had wanted. She refused to stay, however, because she failed to receive the raise and felt that she had been lied to.

We agree that as of the date her resignation was to be effective claimant became voluntarily unemployed. However, we cannot agree that she left work voluntarily for the period between the date she was terminated and the date her resignation was to become effective.^[1]

A different decision would follow if claimant had agreed to accelerate her termination date, Smith v. Employment Division, 34 Or. App. 623, 579 P.2d 310 (1978). Similarly, if the employer had paid claimant through the effective date of her resignation, her termination would not amount to an involuntary discharge. See, Piggly Wiggly Op. W., Inc. v. State, Dept. of Emp. Sec., 292 So. 2d 257 (La. App. 1974); Guy Gannett Pub. Co. v. Maine Employment Sec. Com'n, 317 A.2d 183 (Me. 1974). However, in the instant case claimant cannot be said to have chosen to be unemployed and unpaid during the period between her termination and the effective date of her resignation.

Reversed and remanded for entry of an order not inconsistent with this opinion.

NOTES

[*] Tanzer, J., did not participate in this decision.

[1] A terse and cryptic memorandum opinion to the contrary, Cantor v. Levine, 50 A.D.2d 638, 374 N.Y.S.2d 161 (1975), is not persuasive.