TOWN OF SOUTH HADLEY & another [Note 1] vs. DIRECTOR OF THE DIVISION OF EMPLOYMENT SECURITY & another. [Note 2]

WILKINS, J. In the spring of 1981, the South Hadley school committee gave notice to Lynn S. Fitzgerald, a tenured teacher, that she was laid off, effective September 1, 1981, because of a reduction in the town's budget. A judge of the Hampshire Division of the District Court Department affirmed a decision of the Division of Employment Security concluding that Fitzgerald was entitled to unemployment compensation, if otherwise eligible, from

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the date she last worked (June 23, 1981) until August 31, 1981. The town contends that under the collective bargaining agreement the school year extended through August 31, 1981, that Fitzgerald was on vacation from June 23, 1981, through August 31, 1981, and that, because she could have received medical and hospital insurance coverage during the summer months and could have received her annual salary in twenty-six equal biweekly instalments, she was ineligible for unemployment compensation benefits during the period in issue. We agree with the judge and the Division of Employment Security that Fitzgerald was not ineligible for unemployment compensation benefits during the period from June 23, 1981, through August 31, 1981.

On June 4, 1981, the school committee notified Fitzgerald that it had voted to lay her off, effective September 1, 1981. As defined in the collective bargaining agreement, the school year ran from September 1 through August 31, and included 185 pupil days and 4 teacher days to be scheduled between September 1 and June 30. Salary was to be paid in twenty-six equal biweekly instalments, unless the teacher elected to be paid in twenty-one equal biweekly instalments. The record does not show whether Fitzgerald elected to be paid in twenty-one instalments, although it may be inferred from the briefs that she did. The school committee agreed to make hospital and medical insurance available and to pay 60% of the cost of the coverage throughout the calendar year. The hearing officer made no finding whether Fitzgerald elected such coverage. She testified that she did not.

Fitzgerald's last day of employment was June 23, 1981. She had no obligation to her employer thereafter. It was possible that Fitzgerald might have been recalled, but the review examiner found that she had no reasonable assurance of reemployment for the next school year. The hearing officer noted G. L. c. 71, Section 40, as appearing in St. 1979, c. 717, Section 4, which provides that "[t]he compensation paid to [public day school] teachers shall be deemed to be fully earned at the end of the school year, and proportionately

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earned during the school year." [Note 3] He concluded that Fitzgerald was in "total unemployment" as defined by G. L. c. 151A, Section 1(r) (2), and entitled to benefits from June 23 through August 31, 1981, if otherwise eligible.

To be eligible for benefits a person must be in total or partial unemployment. G. L. c. 151A, Section 24(c); id. Section 1(r). An individual is "deemed to be in total unemployment in any week in which he performs no wage-earning services whatever, and for which he receives no remuneration, and in which, though capable of and available for work, he is unable to obtain any suitable work." G. L. c. 151A, Section 1(r) (2), as appearing in St. 1951, c. 763, Section 1. "Remuneration" is defined for the purposes of Section 1(r) in G. L. c. 151A, Section 1(r) (3), as amended through St. 1976, c. 473, Section 3, which states that "[r]emuneration shall be deemed to have been received in such week or weeks in which it was earned or for such week or weeks . . . to which it can reasonably be considered to apply."

Fitzgerald performed no wage-earning services during at least certain weeks in the period in question. [Note 4] The question then is whether she is deemed to have received remuneration in any week during the period in question. Because under G. L. c. 71, Section 40, a public day school teacher's compensation is treated as earned during the time when school is in session, Fitzgerald did not earn any compensation after June 23. Nor did she earn any remuneration after that date, assuming that "remuneration" (defined as "any consideration" [G. L. c. 151A, Section 1(r) (3)]) is broader in concept than "compensation." All her remuneration was earned when she concluded her teaching duties. We see no basis for concluding that Fitzgerald's remuneration "can reasonably be considered to apply" to any week after June

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23, 1981. Even if she decided to be paid in twenty-six instalments and even if she elected insurance coverage (toward which the school committee contributed) throughout the year of the collective bargaining agreement, the remuneration would not reasonably be considered to apply to weeks between June 23 and September 1. The test is not in what week the remuneration is received but in what week it is earned or to which it may reasonably be considered to apply. The fact that Fitzgerald might have been recalled to work in the next school year does not prevent her from being in total unemployment. See Director of the Div. of Employment Sec. v. Fitzgerald, 382 Mass. 159, 163-164 (1980) (employee on maternity leave eligible for benefits).

Our decision that Fitzgerald was not ineligible for employment compensation is supported, at least inferentially, by the provisions of G. L. c. 151A, Section 28A(a), as appearing in St. 1977, c. 720, Section 29. A teacher who worked in one school year and has "a reasonable assurance" of working as a teacher in the next school year is not entitled to unemployment compensation during the summer months. Id. [Note 5] If the Legislature has concluded that one who has a reasonable assurance of working in the next school year is not entitled to unemployment compensation during the summer, the inference may fairly be drawn that the Legislature intended that a person who has no such assurance is entitled to unemployment compensation during the summer weeks following the end of school sessions for the year. If the Legislature had intended that a teacher with no reasonable assurance of employment in the next school year should be ineligible for

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unemployment compensation until the commencement of the next school year, it could have said so. [Note 6]

Judgment affirmed.