
    Rose TOWNER, Plaintiff-Appellee, v. DEPARTMENT OF EMPLOYMENT SECURITY, State of Louisiana, and Rest Haven Nursing Center, Defendants-Appellants.
    No. 6667.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 15, 1978.
    Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Robert W. Daigle, Lafayette, for defendants-appellants.
    Greg W. Belfour, Lake Charles, for plaintiff-appellee.
    James A. Piper and James A. McGraw, Baton Rouge, for defendant-appellee.
    Before WATSON, GUIDRY and FORET, JJ.
   FORET, Judge.

This is a suit for judicial review of the denial of the plaintiff, of unemployment compensation benefits, by the Department of Employment Security, State of Louisiana. The claimant applied for unemployment compensation benefits, and was initially determined eligible for benefits by the local agency of the Department of Employment Security. The agency found that the claimant had been discharged from her job while she was on a leave of absence, and therefore she had not been discharged for misconduct associated with her employment.

The ruling of the local agency was appealed to the appeals tribunal for the Department of Employment Security. The appeals referee, after a hearing on the matter, reversed the determination of the local agency. The decision of the appeals referee was then appealed by the claimant to the Board of Review for the Office of Employment Security. The Board of Review denied claimant’s appeal and ordered that the decision of the appeals referee be affirmed.

A petition for judicial review of the Board of Review’s decision was then filed by claimant in the Fourteenth Judicial District Court for the Parish of Calcasieu. Pursuant to LSA-R.S. 23:1634, answers were filed by the Rest Haven Nursing Center, claimant’s employer, and by the Administrator of the Office of Employment Security. The latter, in its answer, requested that the decision of the Board of Review be reversed.

A hearing was held on the matter in the district court on January 13, 1978. Counsel for the State and for Rest Haven made no appearance. The district judge rendered judgment in favor of claimant, reversing the decision of the Board of Review and decreeing claimant to be eligible for unemployment benefits. Rest Haven has perfected this devolutive appeal from the judgment of the district court.

In our opinion, the claimant is not chargeable with misconduct in connection with her employment such as would be required to deny her unemployment compensation benefits. Plaintiff requested, and was granted, a leave of absence from her employment as a cook with the Rest Haven Nursing Center. The purpose of the leave of absence was so that she could see about personal and family problems. The employer claims that claimant was granted a three-week leave of absence from January 24, 1977 to February 14, 1977. Claimant claims that she did not understand that the leave of absence was for a definite period of three weeks. She claims that she understood that she could come back to work when she had cleared up the matters for which she had taken said leave. At any rate, claimant did not return to work at the end of the three weeks, but rather, on February 20, she called her employer to inquire when she was supposed to return to work. She was then informed that she was supposed to return to work on the previous Monday, that is, February 14, and having failed to do so, she had been replaced.

The issue is whether claimant is guilty of any misconduct in connection with her employment such as to deny her unemployment compensation benefits.

LSA-R.S. 23:1601(2) provides in pertinent part as follows:

“An individual shall be disqualified for benefits:
(1) if the administrator finds that he left his employment without good cause connected with his employment; . . .
(2) if the administrator finds that he has been discharged for misconduct connected with his employment . . ”

Under the first paragraph of Section 1601, quoted above, we conclude that the claimant did not leave her employment voluntarily. Where there is a leave of absence mutually agreed on by the employer and employee, the employee does not voluntarily quit his job for purposes of determining eligibility for unemployment compensation benefits following failure of the employer to re-employ the employee at termination of the leave. LSA-R.S. 23:1601; Smith v. Gerace, 339 So.2d 410 (La.App. 1 Cir. 1976); South Central Bell Telephone Co. v. Administrator, Div. of E.S., 247 So.2d 615 (La.App. 3 Cir. 1971), writ refused, June 28, 1971.

Concerning the issue of whether the claimant was guilty of such misconduct in connection with her employment as to justify the denial of unemployment compensation benefits, we are of the opinion that she was not. Apparently the Administrator of the Office of Employment Security, State of Louisiana, is of the same opinion, for he requested, in his answer to this suit, that the holding of the Board of Review denying claimant’s demand for unemployment compensation benefits be reversed. Accordingly, is this Court bound by the findings of fact of the Board of Review? Under these circumstances, we conclude that we are not bound by the rule of law that administrative determinations of fact are conclusive unless wholly without evidential support, or wholly independent on the questions of law, or clearly arbitrary or capricious. In this case there is obviously a difference of opinion between the Administrator of the Office of Employment Security and the Board of Review. While the Board of Review and the appeals referee are of the opinion that claimant should be disqualified for benefits, the local agency which originally considered claimant’s application and now the Administrator of the Office of Employment Security are of different views.

The Louisiana Employment Act is within the class of social and economic legislation which should be interpreted so as to extend its benefits as far as possible within the bounds imposed by the expressed legislative restriction. We adhere to the principle that the Louisiana Employment Act is to be construed liberally in favor of the unemployed worker. A liberal construction in this case requires us to find that the claimant herein is entitled to unemployment benefits, as did the district court. Smith v. Gerace, supra; Hale v. Gerace, 324 So.2d 558 (La.App. 1 Cir. 1975), writ refused; Lambert v. Brown, 169 So.2d 4 (La.App. 2 Cir. 1964); Southern Hardware and Lumber Co. v. Vesich, 250 So.2d 780 (La.App. 4 Cir. 1971).

For the above reasons, the judgment of the trial court is affirmed.

Costs of this appeal are assessed against appellant, Rest Haven Nursing Center.

AFFIRMED.

GUIDRY, J., dissents and assigns written reasons.

GUIDRY, Judge,

dissenting.

In this case my brethren acknowledge that a genuine issue of fact exists as to whether or not claimant’s employment was terminated for misconduct associated with her employment. This factual controversy was resolved by the appeal tribunal for the Department of Employment Security in favor of the employer. The appeal tribunal, after hearing testimony in this matter, concluded as follows:

“From the facts and testimony presented, it is concluded that the claimant was granted a three week leave of absence to attend to personal business. The claimant was scheduled to return to work on 2/14/77. She was also requested that she keep in touch with the employer which she failed to do. It is further concluded that the claimant was not replaced while off on a leave of absence; however, she was replaced after the leave was over and the claimant failed to return to work. IT IS ORDERED THAT the determination of the Agency, assessing no disqualification be reversed and a disqualification be assessed as of 1/21/77, the claimant’s last day of actual work with this employer.”

The decision of the appeal tribunal denying unemployment benefits based upon the factual findings above set forth was then appealed to the board of review for the Office of Employment Security. The board of review denied claimant’s appeal and ordered that the decision of the appeal tribunal be affirmed. Under such circumstances the decision of the appeal tribunal is deemed to be a decision of the board of review for purposes of judicial review. LSA-R.S. 23:1630.

My brethren of the majority, like our trial brother, reverse, choosing not to accept the findings of fact made by the board of review. In substituting their own factual determination for that of the board of review, the majority concludes, as did the trial judge, that the provisions of LSA-R.S. 23:1634, regarding the scope of judicial review of a decision of the board of review, are rendered nugatory because the administrator of the Office of Employment Security requested in his answer to the petition for judicial review that the holding be reversed. In my opinion, this conclusion and the majority’s refusal to limit review pursuant to the provisions of LSA-R.S. 23:1634, is error.

To conclude that the administrator, who is deemed a party to a judicial review proceeding can, simply by filing answer requesting a reversal of the decision of the board of review, alter the scope of judicial review as statutorily provided is illogical. If this be so the function of the appeal tribunal and the board of review are useless and the language of LSA-R.S. 23:1634, limiting the scope of judicial review, is rendered meaningless, as the administrator can by his unilateral action bring about a de novo determination in the courts of the eligibility or non-eligibility of an unemployment compensation claimant. This is clearly not the intent of the Louisiana Employment Security Law.

My review of the record reflects the factual findings of the appeal tribunal to be amply supported by the record. This being so and considering that there is no contention that the decision resulted from fraud or ill practices, I would accept the foregoing findings of fact as conclusive with the only remaining issue concerning whether claimant’s actions constituted “misconduct connected with her employment” which disqualifies her as a matter of law from benefits under the act. LSA-R.S. 23:1634; Ware v. Doyal, 320 So.2d 212 (La.App. 3rd Cir. 1975).

As to the remaining issue the record reflects that it was against the policy of Rest Haven for an employee to take a leave of absence without previously securing the express approval of its administrator. The granting of such a leave was, therefore, purely within the discretion of the administrator. When claimant was granted a leave of absence, it was for a three week period, with the understanding that she would keep in touch with her employer. During the period of claimant’s absence, her duties were assumed by her supervisor, who had to perform her own supervisory duties as well.

I would find that claimant’s actions in failing to contact her employer during her leave of absence as well as taking an additional unauthorized six-day leave, without notification as to when she would return, if ever, constituted an intentional and substantial disregard of her obligations to her employer. When Rest Haven accommodated claimant’s request for a leave of absence, it had the right to expect her to be absent only those days expressly agreed upon, and to make periodic contact with its administrator or supervisor. I would conclude that the appeals tribunal correctly found these actions to be misconduct connected with claimant’s employment, which disqualify her for unemployment benefits as of January 21, 1977.

For these reasons I respectfully dissent. 
      
      . Although the district judge did not assign written reasons for judgment, the formal judgment rendered and signed on January 13, 1978, contains the following explanation for the judgment of the court:
      “In view of the answer filed by the Administrator, and no appearance being made by opposing counsel, and it appearing from the record that the evidence is favorable as to the plaintiff, Rose Towner: . . . ”
     
      
      . “In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law” (Emphasis ours.)
     