claimant not required to request alternative work when he had already been told there were no more openings
How later courts described this case
- claimant not required to request alternative work when he had already been told there were no more openings
Written by the judges who cited it.
The opinion
Marian F. Penix, Judge, dissenting. Our role is not one of fact finding. The Appeals Tribunal, in a decision affirmed by the Board of Review, determined the claimant is disqualified from benefits under Section 5(a) because he left his last work because of his illness without making reasonable efforts to preserve his job rights.
The employer offered the claimant work in the plant because catching chickens aggravated his asthmatic condition. He worked in the plant two days, didn’t like it, and left. The employer allowed claimant to return to chicken-catching. He worked a week and two days and then was absent because of illness for two days. He returned without a doctor’s excuse. The doctor’s excuse was a requirement of the employer. He did not call in sick nor inform his employer he would not be at work. He testified his doctor told him not to return to the chicken-catching job. He further testified he “didn’t like the plant at all.” (the plant being the alternative job offered). The employer testified the claimant did not request to go back to the plant the second time. The Referee asked the claimant:
Okay, I’m talking about that day. Did you ask to go back in the plant?
The claimant replied:
. . . and no he’s right, I didn’t ask nothing about a job in the plant.
The employer further testified:
Ah, I’ve just got one final comment is the morning that he did leave, and did he come back and he visited with me and ah, you know, we tried to use him in the plant and he just walked out, it was his decision, you know, I’ve got to get along with those people too. And I said Roger what are you going to do now and he said I’m going to work on my old car and draw my unemployment and I didn’t have any other word, I just let it drop at that.
I find substantial evidence to support the Board of Review’s determination the claimant is disqualified. This being so, it is our responsibility to affirm the Board’s decision. Harris v. Daniels, 263 Ark. 897 , 567 S.W. 2d 954 (1978).
I respectfully dissent.
I am authorized to state that Chief Judge Wright joins in this dissent.