Opinion
John T. Manning, Ronald E. Elberger, Indianapolis, for appellant.
Theodore L. Sendak, Atty. Gen., Darrel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellees.
OPINION ON PETITION TO TRANSFER
PER CURIAM.
Transfer Denied.
HUNTER, Justice (dissenting).
I respectfully dissent from the denial of transfer in this cause. The petitioner, Alfred McKinley, filed for unemployment compensation after being discharged from his job as a night porter. The claim was denied without a hearing, based upon the employer's written statement that McKinley had been caught gambling on the business premises. Thereafter, McKinley requested and received a hearing before a Division Referee. At the hearing, neither petitioner nor the employer was represented by counsel, and no evidence was entered to support the gambling charge. However, the referee denied petitioner unemployment compensation because the referee found that McKinley had failed to make an independent effort to secure work. It appears that petitioner had one direct employer contact since his discharge. Through counsel, McKinley filed an application to introduce additional evidence in his appeal to the Review Board of the Employment Security Division. The petitioner offered to show that he had in fact sought employment at three additional places which evidence had not been introduced at the hearing before the referee. The application was denied on the grounds that the petitioner had failed to show that this evidence was newly discovered or unavailable at the time of the referee's hearing. The Review Board then affirmed the referee's decision and held that one employer contact during a 3 1/2 month period failed to show an independent effort to secure work. The Court of Appeals affirmed. McKinley v. Review Board (1972), Ind.App., 290 N.E.2d 108.
Petitioner is here alleging that he was denied due course of law in that he was given no notice of the issue upon which his claim was denied by the hearing referee. I agree.
Ind.Ann.Stat. § 52--1542e (1964 Repl.); IC 1971, § 22--4--17--6 provides in pertinent part:
'. . . That with respect to any hearing before a referee held pursuant to Section 1803 (Sec. 52--1542b) hereof, each party to such hearing shall be mailed a notice of such hearing at least five (5) days before the date of the hearing, specifying the place and time of the hearing, and identifying the issues to be decided; (emphasis supplied) . . ..'
The above statute represents an implementation of the fundamental safeguards of due process. The legislature has seen fit to statutorily insure that a person seeking redress for an alleged wrongful withholding of unemployment benefits is properly cognizant of the issues to be raised at his hearing. The statute encompasses the elementary notions of fairness which insure an impartial hearing. These protections become acutely paramount where, as in the case at bar, the applicant for unemployment compensation is not familiar with the rules concerning the hearing procedure nor is equipped to cope with an adversary situation. The right to be heard embraces the right to fair opportunity for preparation on all issues to be heard. In the instant case, McKinley knew only that he had been denied compensation for alleged gambling on the employer's premises. When this charge proved groundless, McKinley was met with an issue never raised before--one which he had no reason to know was to be considered. A fair interpretation of the statute in question leads to the inevitable conclusion that the legislature has expressed its intention to require specificity in identifying the issues to be raised at the division referee hearing. This expressed legislative intent was not followed in this case.
Furthermore, in view of the public policy considerations surrounding the awarding of unemployment compensation, of which the Review Board is indisputably aware, I find it impossible to judicially sanction the Review Board's denial of petitioner's application to introduce additional evidence.