McBrearity v. Maine Unemployment Insurance Commission

CLIFFORD, Justice,

with whom McKUSICK, Chief Justice, joins, dissenting.

I respectfully dissent.

The commission found that McBrearity left his employment voluntarily without good cause attributable to such employment and that his failure to notify the corporation and to inquire of the corporation as to the availability of other work was unreasonable. These findings were based on the commission’s determination that Hafford had no authority to discharge McBrearity. If in fact Hafford had no such authority, the commission’s conclusion that McBrearity’s conduct was unreasonable is not clearly erroneous.

However, neither the commission nor the court has addressed whether Hafford had apparent authority to fire McBrearity, which I consider to be the crucial issue in this case. Apparent authority exists in the absence of actual authority when the principal knowingly permits the agent to exercise authority or holds out the agent as possessing authority. The conduct of the principal must lead the third person to believe that a given party is his agent. Twin Island Development Corp. v. Winchester, 512 A.2d 319, 325 (Me.1986); Restatement (Second) of Agency §§ 8, 27 (1958).

The commission found that Hafford did purport to fire McBrearity and that McBrearity believed that he had been fired. If Hafford had apparent authority to discharge McBrearity, then it was reasonable for McBrearity to rely on that discharge and not to take further steps to protect his employment. Although there is much evidence in the record suggesting that Haf-ford had apparent authority to hire and fire McBrearity, we cannot conclude as a matter of law that such apparent authority existed.

I recognize that the commission has the obligation to decide all the issues raised by the evidence, and this court normally will not remand to the commission to remedy its failure to address issues raised before it. Lawrence v. State Employment Security Comm’n, 432 A.2d 790, 792 (Me. 1981); Dubois v. Maine Employment Security Comm’n, 150 Me. 494, 504, 114 A.2d 359, 364-65 (1955). However, those cases recognize that in exceptional circumstances, remand can be appropriate. Lawrence, 432 A.2d at 792. I believe such exceptional circumstances exist here. First, apparent authority is a difficult issue rarely present in employment security cases and the failure of the commission to address it is more understandable than if the issue were one with which it dealt frequently. Second, and more importantly, apparent authority is so crucial an issue in this case that it must be addressed in order that the case be decided correctly. The failure of the commission to address that issue really results in an inadequate record before this court. See Roy v. Maine Employment Security Comm’n, 440 A.2d 1066, 1069 (Me.1982).

I would remand this case to the commission for a determination whether Hafford had the apparent authority to discharge McBrearity.