The opinion
Carleton Harris, Chief Justice, dissenting. The Employment Security Act covers Chapter 11 of the 1960 Replacement, Arkansas Statutes, Annotated, Volume 7-A. The Declaration of State public policy is found in the opening section, 81-1101, and reads as follows:
“Economic insecurity due to unemployment is a serious menace to the health, morals, and welfare of the people of this State. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which may fall with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this great hazard of our economic life. This can be accomplished by encouraging employers to provide more stable employment and by the systematic accumulation of funds during periods of employment from which benefits may be paid for periods of unemployment, thus maintaining purchasing power and limiting the serious social consequences of poor relief assistance. The Legislature, therefore, declares that in its considered judgment, the public good, and the general welfare of the citizens of this State require the enactment of this measure, under the police power of the State, for the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own.”
Appellee, Ouida R. Mills, was granted leave of absence, due to pregnancy, on July 29,1956. On October 31, 1956, about five weeks after the birth of her child, Mrs. Mills endeavored to resume work with the company, but was refused employment because no vacancy existed at that time. I emphasize the statement, for this was the reason for employment not being granted, rather than the fact that a year’s leave had not terminated. This is very clear from the record. Mr. J. W. Harrington, secretary, Employees Benefit Committee, Southwestern Bell Telephone Company, representing the employer, testified:
“The contract does not specify the length of time, and the following is from a part of the company’s established practice: ‘When it has been decided that an employee shall cease work because of pregnancy, she determines whether to resign or request a leave of absence. If she requests a pregnancy leave of absence, it is granted for a period of one year.’ It is always one year.
That doesn’t mean, however, that the employee will not be returned before one year. That depends upon the employee’s physical condition, her willingness to return and the availability of work in the office where she was formerly employed.”
This last statement pretty well states my interpretation of the leave granted, for in my view, the year’s leave of absence only relates to the period of time in which the employee may preserve her job rights. Here, there is no contention that Mrs. Mills was not physically able to return to work; certainly she was willing to return to work, and employment was only refused because there were no positions open. This is plainly shown by Mr. Harrington’s testimony.
“There has been a change in the employment conditions at West Memphis, which came about during her absence. The West Memphis office was converted to dial operation; there are not as many operators needed at present as were needed prior to the conversion. . . .
To the best of my knowledge, we have no quarrel at all with Mrs. Mills. As far as I know, also, she would be re-employed if a vacancy were present.”
In fact, on a previous occasion in 1954, after being granted a year’s leave due to pregnancy, Mrs. Mills returned to work for the telephone company after four months.
Mrs. Mills was involuntarily unemployed, and under my view, in conformity with the intent of the Employment Security Act, she was entitled to unemployment compensation when she became able and willing to return to work. The company’s answer to this contention is that Mrs. Mills agreed to take the year’s leave; however, I fail to see that appellee really had any choice, i.e., she either had to take the leave, or she had to resign. Adopting the latter course would simply mean that she would lose seniority rights, and other benefits as an employee of the telephone company. If the company had a right to demand that she take a year’s leave, or else resign, then I see no reason why it would not have equal right to demand that she take a two years’ leave, or any other period of time which it might consider desirable. For that matter, § 81-1118 provides that ‘ ‘ any agreement by an individual to waive, release, or commute his rights to benefits, or any other rights under this Act, shall be void.” If then, leave granted by reason of physical disability terminates when that person is able and willing to return to work, any agreement to the contrary would be void. In effect, the Majority have held that appellee, in accepting the leave of absence, has waived her rights to any benefits for a whole year, notwithstanding that she was able and willing to return to work before that time.
Because, on the whole, I consider the holding of the Majority to be contrary to the intent of the Legislature in passing the Employment Security Act, I respectfully dissent.
Mr. Justice Robinson joins in this dissent.