Opinion
No. 74-123
Decided October 30, 1974.
Industrial Commission terminated unemployment compensation of claimant, and claimant sought review.
Order Set Aside
1. UNEMPLOYMENT COMPENSATION — Failure — Timely Report — "Call-In Card" — Not Support — Finding — Unavailable for Work — Termination of Benefits — Reversed. Since referee found that unemployment compensation claimant did not realize that "call-in" care he received in the mail concerned possible employment, and since claimant was not otherwise alerted to such employment, claimant's failure to report within the time limit specified in the card, standing alone, will not support the finding that claimant was unavailable for referral and was not actively seeking work; hence, since record otherwise totally fails to support such finding, termination of claimant's benefits on the basis of such finding must be reversed.
Review of Order from the Industrial Commission of the State of Colorado
Philip W. Davis, for petitioner.
John P. Moore, Attorney General, John E. Bush, Deputy Attorney General, Robert L. Harris, Assistant Attorney General, for respondent.
Claimant seeks review of an order of the Industrial Commission terminating his unemployment compensation benefits. We reverse.
Claimant was separated from employment and filed an unemployment compensation claim. The Division of Employment found claimant eligible and authorized payment of benefits on May 24, 1973. In the early part of October 1973, claimant was sent a "call-in card" (card) by the Division. While the card was not introduced in evidence, a copy of the form card utilized by the Division has been supplied to us by counsel for the parties. Both counsel assume that this card was the type sent to claimant, and we accept that assumption.
The card is perforated and folds in half so that a message from the Division may be included on one part and a reply from the claimant on the other. The card bears the heading "Colorado State Employment Service" and contains the following printed material: "Please come to this office (time) (date) to see . Bring this card with you." Space is then provided to indicate the reason why a claimant is requested to report. It is not disputed that no information was inserted in the card at this point. The card concludes: "If you are unable to come to the office, please use the attached card for reply."
Claimant testified that the card advised him to come into the employment office "within ten days." It is conceded that he arrived one day late. He was then informed by an employee of the Division that the card related to a job referral and since he was a day late, the job referral had been "sent in."
The day after claimant reported, he was advised by letter from the Division that his benefits had been disallowed effective October 25, 1973. The letter stated: "This disallowance is based on the fact that you failed to answer a call in to your local office and are therefore not available for referral by them." (emphasis added) The letter further advised claimant that he was terminated because he was residing in an area where there were no prospects of employment in his field of work.
Claimant requested a hearing before a referee. After hearing testimony from claimant only, the referee determined that claimant was not disqualified on the basis of his residence, but the referee upheld the Division's decision relative to the card. The referee found that:
"Claimant] did not respond to this card because he did not realize that it concerned possible employment, but instead assumed that it was merely a recordkeeping function."
Nevertheless, the referee determined that:
"Inasmuch as the claimant had been unemployed for approximately seven months, his lack of response to a notification from the local employment office must be construed as not actively seeking employment and being unavailable for referral." (emphasis supplied)
Claimant petitioned the Industrial Commission for review of the referee's decision, and the Commission affirmed the referee's findings and order terminating benefits. Claimant contends, among other things, that there is no substantial evidence to support the Commission's order. See 1969 Perm. Supp., C.R.S. 1963, 82-5-11. We agree.
According to a pamphlet furnished to each claimant by the Division:
"Available for work means that you are in a position to go to work immediately . . . .
"Actively seeking work means that you are registered for work in a local employment office of the Division and that you are making a reasonable attempt to get a job on your own, such as applying for work in person at various places of business, reporting to your union hall, following up 'Help Wanted' ads in your newspapers, etc." (emphasis supplied)
Nowhere in the pamphlet or the Commission's Regulations (adopted pursuant to C.R.S. 1963, 82-4-7(2)) is a claimant informed that the card is or might be used to advise him regarding job referrals. Rather, Regulation 7A informs the claimant only that:
"If in the judgment of the Division, the interests of the unemployed worker would be better served or if the control of benefit payments should be made more positive, an individual may be required to report in person weekly, or at other intervals."
and the pamphlet states:
"Once a claim is established, reporting is usually done by mail. There may, however, be times when you are requested to report in person. You must have your identification booklet with you whenever you visit the employment office."
[1] Since the referee found that claimant did not realize the card concerned possible employment and since claimant was not otherwise alerted to such employment, claimant's failure to report within the time limit specified, standing alone, will not support the finding that claimant was unavailable for referral and was not actively seeking work. The record otherwise totally fails to support this finding and readily supports a contrary conclusion.
By reason of the foregoing, it is unnecessary to consider the other issues raised by claimant. The order of the Commission is reversed and the cause remanded to the Commission with directions to reinstate claimant's unemployment compensation benefits consistent with the views expressed herein.
CHIEF JUDGE SILVERSTEIN and JUDGE COYTE concur.