Opinion
No. 77-735
Decided February 9, 1978. Rehearing denied March 2, 1978. Certiorari granted May 30, 1978.
Industrial Commission awarded unemployment compensation benefits to married woman who had left her job in Colorado to go with her husband who had obtained a job in another state, and employer sought review.
Order Affirmed
1. UNEMPLOYMENT COMPENSATION — Married Woman — Followed Husband — His New Job — Another State — Separation From Work — "Unavoidable" — Full Benefits — — Properly Awarded. Where unemployment compensation claimant, a 38-year-old married woman and the mother of three, left her job in Colorado to go with her husband who had obtained a job in California, the Industrial Commission properly applied statutory provisions authorizing a full award of benefits in instances where employees separation from work resulted from an act by the employee that was "unavoidable," and using that provision, did properly award full benefits to claimant.
2. Claimant's Move to California — Be With Her Husband — Unavoidable — No Fault of Her Own — Reduced Award Provision — Moving to Another Area — Inapplicable — Full Award Proper. Since unemployment compensation claimant's move to California to be with her husband who had obtained a job there was "unavoidable," that is, made necessary through no fault of her own, the statutory provision calling for a reduced award of unemployment compensation benefits where a claimant's separation from employment is caused by "moving to another area . . . ." was a provision that was not applicable to her claim, and thus Industrial Commission did not err in granting the claimant a full award of benefits.
Review of Order from Industrial Commission of the State of Colorado
DeMuth Eiberger, David H. Stacy, for petitioner-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Louis L. Kelley, Assistant Attorney General, for respondents-appellees.
The question presented by this review is whether an employed, married woman who leaves her job in Colorado to go with her husband who had obtained a new job in another state, may properly be awarded full benefits under the Unemployment Compensation Act. We answer this question in the affirmative, and therefore affirm the award of benefits to the employee, Alice J. Wetherow, in her claim against the employer, Mountain States Telephone and Telegraph Company.
Undisputed testimony and documents in the record disclose that the employee in this case is a 38-year-old woman, married and the mother of three, who left her job in Colorado to accompany her husband to California where he had obtained new employment. Previously, the statute directed that there be a special award of benefits in situations such as this, see § 8-73-108(8)(a), C.R.S. 1973. In Briggs v. Industrial Commission, 36 Colo. App. 292, 539 P.2d 1303 (1975), applying that statute, this court held that a claimant who terminated his employment in order to join his wife who had been transferred to another area by her employer was entitled to a special award of benefits. The court in Briggs reasoned that: "One who becomes unemployed as the result of leaving employment in order to travel to another place to live with his or her spouse has not 'voluntarily' left work . . . ."
In 1976 that statute was repealed and reenacted with minor modifications as § 8-73-108(7)(a), C.R.S. 1973 (1976 Cum. Supp.). The amended statute provided for a special award when employment was terminated because of a "marital, parental, filial, or domestic obligation." This section, however, was declared unconstitutional by the Colorado Supreme Court in Kistler v. Industrial Commission, 192 Colo. 172, 556 P.2d 895 (1976).
It is of critical importance here to note that the court declared the statute unconstitutional in Kistler, not because it felt it improper to compensate a woman who terminated a job to move out of state with her husband, but rather because the statute created an irrational classification. The classification was held to be irrational because it treated persons who terminated employment for marital reasons less liberally than it did those who quit a job for no reason at all. Accordingly, while the specific section of the statute that Briggs dealt with was declared unconstitutional in Kistler, nevertheless, the rationale of Briggs quoted above remains viable today. See also Mountain States Tel. Tel. Co. v. Dep't of Labor and Employment, 38 Colo. App. 298, 559 P.2d 252 (1976), where we affirmed the award of benefits to a wife who left her job to accompany her husband who was attending college in another state. Thus, Kistler, does not mandate reversal here. Indeed, if anything, the logic of the Kistler holding would militate against limitation of benefits in cases such as this.
[1] In this case, the Commission concluded that the employee was entitled to a full award of benefits pursuant to § 8-73-108(6), C.R.S. 1973 (1976 Cum. Supp.), which provides in pertinent part as follows: "If . . . the division determines that a claim for benefits is not specifically covered under other provisions of this section, the division shall grant a full award, reduced award, or special award. The general assembly determines that, by reason of the wide variance of facts and the conditions surrounding the causes of separation from work, the division may consider other causes for separation from work . . . . "(b) In its consideration of granting an award, the division may consider whether or not:
. . . .
"(VI) The act or failure to act on the part of the claimant was unavoidable or was caused by the illness of the claimant or a member of his immediate family . . . ." (emphasis added)
Under the facts present here, we agree with the Commission's use of this section.
The employer, however, contends that the Commission was without statutory authority to grant a full award of benefits because the employee's claim for benefits is specifically covered by provisions of the statute which require a reduced award. The employer asserts that the claim falls within the provision of § 8-73-108(5)(d), C.R.S. 1973 (1976 Cum. Supp.), which provides for a reduced award where the claimant's separation from employment is caused by "moving to another area except for health reasons or to accept a better job . . . ."
[2] The express intent of the General Assembly, however, is that "each eligible individual who is unemployed through no fault of his own shall be entitled to receive a full award of benefits . . . ." Section 8-73-108(1), C.R.S. 1973 (1976 Cum. Supp.). Consequently, before benefits may be reduced it must be determined that the separation from employment was the fault of the employee. Here, the employee's move to another area was "unavoidable," i.e., made necessary through no fault of her own. Briggs v. Industrial Commission, supra. Therefore, the reduced award provisions of § 8-73-108(5), C.R.S. 1973 (1976 Cum. Supp.), in general and subsection (d) thereof in particular, are not applicable to the employee's claim.
To interpret the Unemployment Compensation statutes to penalize an employee under these circumstances by reducing benefits would be to ignore the explicit intent of the General Assembly as expressed in § 8-73-108(1), C.R.S. 1973. It would also disregard similar judicial mandates for liberal construction of Unemployment Compensation Acts in order to further their remedial and beneficial purposes, Andersen v. Industrial Commission, 167 Colo. 281, 447 P.2d 221 (1968); Tague v. Coors Porcelain Co., 30 Colo. App. 158, 490 P.2d 96 (1971), and would contravene public policy which favors keeping families together.
Order affirmed.
JUDGE KELLY concurs.
JUDGE VAN CISE dissents.