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BR -- 106663

Date: 
08/01/2008
Author: 
BOR (Board of Review)
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The claimant, who was employed as a chief at a restaurant, found a new job and gave two weeks notice at his old one. (Although not noted in the Board's decision, the first employer was scheduled to close for the season three weeks after the date the claimant gave his notice.) The old employer decided not not to allow the claimant to work out his notice and discharged him immediately. He filed for UI and was found eligible for his two-week notice period, but disqualified thereafter as a voluntary quit. He received the notice from DUA just as the new full-time job was beginning and, knowing he was not eligible because he was no longer unemployed, he did not bother to appeal.

Six weeks later, the new employer laid him off and he tried to reopen his claim. He was told that the disqualification was still in effect. He tried to appeal the disqualification, but the appeal was deemed untimely. He appealed the timeliness decision, had a hearing and lost.

The Board agreed that the appeal was untimely, but ruled that "considerations of due process and fundamental fairness dictate that we not deny the claimant an opportunity to present his argument and be heard under these unique circumstances." Citing the federal statutory requirement that denied claimants have an opportunity to he heard, they remanded for a hearing on the validity of the voluntary quit disqualification.

(Advocates's note: I'm not sure the circumstances are all that "unique". It must be fairly common for disqualified claimants to decide not to appeal because, by the time they get the disqualification notice, they have a new job. And then, if the new job ends before the claimant has worked eight weeks and earned his/her benefit rate in each week, the circumstances are really indistinguishable from this case.)

The Board allowed an appeal filed more than 30 days after notice of disqualification on the ground that, under the circumstances, it would violate due process and the hearing requiremnent of the federal statute to deny the claimant the right to a hearing.  Advocate:  Rick McIntosh, SCCLS

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