The opinion
C. O. Grathwohl, J.
(dissenting.) I dissent. The issue is whether payments were made to the employee in lieu of notice or in the form of termination pay. It is important that the employer paid plaintiff’s salary for six weeks following termination. The majority states: "The payments made during the first four weeks are at issue herein. The remaining two weeks were paid as severance pay and are not in dispute.” Ante, pp 329-330. The employer did not designate the payment as the majority states. It is just as reasonable to believe the employer intended all payments to be termination pay. The majority reverses the decisions of the mesc referee and Board of Review and the Montcalm Circuit Court on the basis of statutory construction and ignores stare decisis.
There are prior decisions of the mesc Board of Review consistent with the employee’s eligibility for unemployment benefits. Jones v Gateway, Inc, mesc Board of Review, Docket No. B82-18088, decided October 22, 1982, and Woodruff v Keiper USA, Inc, mesc Board of Review, Docket No. B80-21120, decided November 21, 1980. The majority misreads the mesc referee decision in Cook v Bronson Methodist Hosp, mesc Referee Decision No. B89-00284, decided March 24, 1989, because the referee upheld the employee’s claim for benefits. In addition, the referee referred to the factor that considers payment governed by any contractual provision, custom, or expectation on the part of the employee, not the employer.
*335 Appellate courts cannot substitute their own judgment for that of an administrative agency if there is substantial evidence that supports the judgment of the agency. See Smith v Employment Security Comm, 410 Mich 231, 256 ; 301 NW2d 285 (1981). What is "substantial” evidence? It is "evidence which a reasoning mind would accept as sufficient to support a conclusion. While it consists of more than a mere scintilla of evidence it may be substantially less than a preponderance of the evidence.” Russo v Dep’t of Licensing & Regulation, 119 Mich App 624, 631 ; 326 NW2d 583 (1982). In my opinion, there is competent, material, and substantial evidence on the whole record to affirm the decisions of the Board of Review and the circuit court.