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In re Yarboro

Filed: September 4, 1979.

IN THE MATTER OF: JAMES R. YARBORO, CLAIMANT AND COLLINS AND AIKMAN CORPORATION AND EMPLOYMENT SECURITY COMMISSION OF NORTH CAROLINA


Appeal by the Employment Security Commission of North Carolina from Lee, Judge. Judgment entered 22 May 1978 in Superior Court, Person County. Heard in the Court of Appeals 30 March 1979.

Webb, Judge. Judge Mitchell concurs. Judge Martin (Robert M.) dissents.

Webb

This appeal poses the question of whether the Employment Security Commission's finding that claimant was not available for work should have been reversed by the superior court. We hold that the superior court committed error in reversing the Employment Security Commission.

G.S. 96-13 provides:

(a) An unemployed individual shall be eligible to receive benefits with respect to any week only if the Commission finds that --

(3) He is able to work, and is available for work. . . .

We can find no cases on all fours with the case sub judice. The term "available for work" has been construed in other contexts in several cases. See In re Watson, 273 N.C. 629, 161 S.E.2d 1 (1968); In re Thomas, 281 N.C. 598, 189 S.E.2d 245 (1972), and In re Beatty, 286 N.C. 226, 210 S.E.2d 193 (1974). We believe that to be available for work a person must be in a position so that prospective employers will hire him for work of which he is capable of performing. In this case the claimant testified that he was not hired because prospective employers were "waiting to see what my sentence will be." We hold that the Commission could conclude from this that claimant was not in a position that prospective employers would hire him and he was not "available for work."

We reversed the judgment of the superior court and remand this case for the entry of a judgment conforming to this opinion.

Reversed and remanded.

Disposition

Reversed and remanded.

Judge Martin (Robert M.) dissenting.

The question for decision is whether the claimant, having pled guilty on a narcotics charge and awaiting sentence thereon, is, by reason of the impending sentence, ineligible for benefits under the Employment Security Law of North Carolina, on the ground that during the time of his unemployment he was unavailable for work. There is no hard and fast rule as to what constitutes "availability" within the meaning of the statute providing that an individual must be available for work in order to be entitled to employment compensation benefits. Availability for work depends largely on the ...


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