Opinion
Oct. 3, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Vernon P. Playton, Denver, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission (Ex-officio Unemployment Compensation Commission of Colorado).
No appearance for Pinkerton Guard or Burns Security Systems.
DWYER, Judge.
This is an unemployment compensation case. Claimant, James S. Henry, was employed as a security guard by Pinkerton Guard (Pinkerton) from August 31, 1970, to June 16, 1971, when he quit and accepted a job with Burns Security Systems (Burns). Claimant was employed by Burns from June 22, 1971, to September 9, 1971, at which time he was discharged. Claimant then filed his claim for benefits under the Colorado Employment Security Act. His claim was heard by a referee of the Colorado Division of Employment and denied upon a finding by the referee that neither claimant's separation from employment by Pinkerton nor his separation from employment by Burns was under circumstances which entitled him to compensation under the Act. The Industrial Commission (Ex-officio Unemployment Compensation Commission of Colorado) adopted, approved, and affirmed the decision of the referee, and claimant has filed this petition for review seeking a reversal of the final order of the Commission. We affirm the order of the Commission.
Claimant's right to benefits under the Act is dependent upon the circumstances of his separation from employment. Claimant claimed that he was entitled to benefits under the Act because he had quit his job with Pinkerton to accept a better job with Burns. 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(g). The statute defines a better job as one which, among other things, lasts at least 90 days unless sooner terminated under conditions over which the worker had no control. Gatewood v. Russell, 29 Colo.App. 11, 478 P.2d 679. It is also his contention that he was entitled to an award of benefits upon his separation from employment by Burns because the alleged violation of a company rule for which he was discharged 'did not result or could not have resulted in serious damage to the employer's property or interests . . ..' 1965 Perm.Supp., C.R.S.1963, 82--4--8(5)(b). The referee denied these claims on the basis of his finding that, while employed by Burns, claimant left his assigned post while on duty and that such conduct constituted a willful neglect of his employer's interests.
Claimant contends that the order of the Commission should be reversed because hearsay evidence was improperly admitted at the hearing before the referee. At the hearing, a witness for Burns testified that claimant left his assigned post while on duty. The testimony was hearsay because it was based upon reports in the Burns' files and not on the witness' own knowledge. Later in the hearing, claimant was examined by the referee and admitted that he had left his post while on duty. Under these circumstances, the admission of the hearsay evidence does not require reversal. Our Supreme Court has held that an order of the Commission will not be reversed because of the admission of hearsay evidence where the findings of the Commission upon which its order is based are supported by other substantial and competent evidence. Johnson v. Industrial Commission, 137 Colo. 591, 328 P.2d 384; Williams v. New Amsterdam Casualty Co., 136 Colo. 458, 319 P.2d 1078. See also Game and Fish Department v. Pardoe, 147 Colo. 363, 363 P.2d 1067.
Claimant's contention that the decision and order of the referee and the Commission were insufficient as a matter of law is without merit. The findings and order of the referee which were adopted and approved by the Commission comply with all statutory requirements.
Order affirmed.
COYTE and ENOCH, JJ., concur.