BRUCE G. ZUKOSKI vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another.

BRUCE G. ZUKOSKI vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 1]

390 Mass. 1009

January 17, 1984

James Breslauer for the employee.

George J. Mahanna, Assistant Attorney General, for Director of the Division of Employment Security.

The plaintiff was denied unemployment compensation by a review examiner of the Division of Employment Security, because he found that the plaintiff left his employment voluntarily without good cause attributable to the employing unit. G. L. c. 151A, Section 25 (e) (1). The board of review (board) sustained the examiner's decision, and, on a petition for review in a District Court, the decision of the board was affirmed. We reverse and remand to the Division of Employment Security.

The plaintiff was employed as a maintenance man at a nursing home from December, 1981 to June 25, 1982, and his hours were 8 A.M. to 4:30 P.M., five days a week. On June 26, 1982, Ever Clean acquired the management of cleaning duties under contract with the nursing home. Approximately two weeks later, the plaintiff was informed that his working hours were to change to the second shift, 3 P.M. to 11 P.M. or 4 P.M. to 12 midnight. The plaintiff explained that he could not work on Monday nights because his wife worked those nights and his presence was required at home to care for their children. On the first Monday night after the change of work hours, the plaintiff's supervisor worked for him to determine how late the plaintiff would have to work, but when the plaintiff reported to work the following morning, the supervisor told him that he was not able to measure how late the plaintiff would have to work on Monday nights. The plaintiff then submitted a letter of resignation to become effective in ten days. He was given his final paycheck within fifteen minutes and was told to leave immediately.

We have recognized domestic responsibilities as permitting a claimant in a situation that may be similar to the plaintiff's "to reject certain employment situations as unacceptable," rendering his termination involuntary and marking him eligible for benefits under G. L. c. 151A, Section 24 (b). Manias v. Director of the Div. of Employment Sec., 388 Mass. 201 , 204 (1983).

The examiner made no findings on the issue of domestic responsibilities. We, therefore, reverse the judgment of the District Court and order that a judgment be entered remanding this matter to the Division of Employment Security. On remand, the board may determine that the plaintiff's leaving was voluntary or involuntary by making findings based on the evidence in the record, or on additional evidence. Alternatively, the board may return the matter to the review examiner for additional findings and a determination on the evidence in the record, or for an evidentiary hearing on the issues raised.

So ordered.

FOOTNOTES

[Note 1] Ever Clean Management Co., Inc. (Ever Clean), employer.