Opinion
March 25, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 951
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado (ex-officio Unemployment Compensation Commission of Colorado).
John W. McKendree, Jonathan Wilderman, Denver, for petitioner.
No appearance for respondent Hensel Phelps Const. Co.
SILVERSTEIN, Chief Judge.
Bruce W. Cronnelly (claimant) appeals from a final order of the Industrial Commission (ex-officio Unemployment Compensation Commission) disqualifying him from receiving unemployment benefits for a period of 13 weeks following his separation from employment with Hensel Phelps Construction Company (employer).
The Industrial Commission affirmed and adopted the decision of the referee, including the determination that the separation was governed by the optional award provisions of s 8--73--108(7), C.R.S.1973 (1969 Perm.Supp., C.R.S.1963, 82--4--8(7)). The referee found that claimant was terminated because of absenteeism without notification to his employer and concluded that the claimant was responsible for his termination.
The evidence in the record discloses that claimant was hired as a carpenter at 11 a.m. on Friday, July 13, 1973, and that his employment ended on Monday, July 16, 1973. The employer contended that claimant voluntarily quit the job, and the record contains a 'voluntary quit' slip signed by the claimant on July 16, 1973. The claimant contends that he was involuntarily dismissed and that he signed the 'voluntary quit' slip only because the employer insisted he do so in order to obtain his paycheck on the day he was discharged.
The claimant testified that he understood he was to work on Saturday; that his dog was lost during the preceding night; that he spent Saturday looking for his lost dog; and that he did not notify his employer in advance of his absence.
Section 8--73--108(7)(a), C.R.S.1973, provides that, as regards separations for absenteeism the Division may grant a full award, 50 percent of full award, a special award, or no award. In determining which of these options to choose, one factor to be considered is whether the claimant notified the employer in advance of the absence. Section 8--73--108(7)(b)(V), C.R.S.1973.
As we said in Tague v. Coors Porcelain Co., 30 Colo.App. 158, 490 P.2d 96, 'Our function as reviewing court is not to substitute our judgment for that of the Commission. If the evidence would support the findings made by the Commission, we must affirm.'
The record reveals that there was substantial conflict in the evidence as to the basis and manner of claimant's termination. Where such is the case, it is for the Commission to determine the award section under which the claim falls and the manner of its application, and this court cannot substitute its determination for that of the Industrial Commission. Section 8--74--109, C.R.S.1973 (1969 Perm.Supp., C.R.S.1963, 82--5--11 ); Morrison Road Bar, Inc. v. Industrial Commission, 138 Colo. 16, 328 P.2d 1076.
The order is affirmed.
SMITH and BERMAN, JJ., concur.