remanding for failure to make finding of fact
How later courts described this case
- remanding for failure to make finding of fact
Written by the judges who cited it.
The opinion
ROBERTS, J.,
dissenting.
This case should be reversed and the Employment Division ordered to pay compensation to claimant for the period in question.
The majority’s analysis of our previous cases dealing with student claimants for unemployment compensation is in some respects confusing. I would make it explicit that there is no heavier than normal burden upon a student than on any claimant for unemployment compensation. Language used by the majority *25 indicates that the burden on different claimants varies according to the facts. There is no sound reason or legislative sanction for imposing differing standards of proof on different groups of claimants for unemployment compensation.
The majority holds that this case must be remanded for an explicit finding on the claimant’s credibility. While I agree that in the future such findings by referees should be made I cannot agree to remanding this case. The majority calls upon the referee to enter a finding as to claimant’s credibility at a hearing held almost a year ago. The time delay alone makes such a procedure questionable. My major objection to remanding this case is that we will simply be providing the referee a second opportunity to develop an analysis which will support the decision to deny claimant benefits.
After the hearing on the claim the referee entered his decision stating in part:
"CONCLUSION: Claimant was not sufficiently available for work. This is not to say that claimant does not want to be employed. He appeared highly motivated, both to study and to earn a living. It is to say, however, that the high level of proof required in cases such as this has not been met.
"School attendance itself creates a significant inference of unvailability for work. This inference can be overcome by unequivocal testimony that a student will drop school in favor of work and by a showing of additional facts proving that education is secondary to a job. Minniti v. Employment Division, 75 Adv Sh 1690, — Or App —, 1975. Claimant has arguably met the first test by his hearing testimony and by his earlier consistent representations to the Division. He has not, however, quite met the second.”
This language clearly indicates that the referee made his decision on the basis of the higher level of proof which earlier cases indicated was required of student claimants. The majority is correct that the referee *26 made no specific finding as to credibility. The suggestion is, however, that the referee found claimant credible but ruled that he could not obtain benefits because he failed to show additional consistent facts. I would rule that as a matter of law claimant was available for work and should be paid unemployment compensation.
I respectfully dissent.