Opinion
Feb. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 415
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Dept. of Labor and Employment, div. of Employment, Industrial Comm. of Colo. (ex-officio Unemployment Compensation Comm. of Colo.).
Akolt, Dick, Rovira, DeMuth & Eiberger, Russell P. Rowe, Denver, for petitioner.
Larry D. Tannenbaum, Brighton, for respondent Jeannette M. Neddeau.
PIERCE, Judge.
Unemployment compensation claimant, Jeannette Neddeau, was discharged from employment by Mountain Bell in January of 1972. The Industrial Commission granted her a full award pursuant to the terms of 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(k). The dispute involved on appeal is whether she should have been granted no award under the provisions of 1965 Perm.Supp., C.R.S.1963, 82--4--8(6)(b)(xvii) or a full award in compliance with the section first cited above.
The latter provision provides that the employee is entitled to no award if the discharge was for 'careless and shoddy work.' 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(k), on the other hand, provides for a full award of unemployment benefits if the employee was discharged for the reason that he is 'physically or mentally unable to perform the work or unqualified to perform the work as a result of insufficient educational attainment or inadequate occupational or professional skills.'
A deputy initially ruled that the discharge was occasioned by careless or shoddy work. This determination was reversed by a referee who held that the discharge was occasioned by claimant's physical or mental inability to perform the work. In its final order, the Commission adopted the findings of fact and conclusions of law of the referee. Mountain Bell appeals. We affirm.
The evidence is conflicting, but there was testimony presented which, if believed by the trier of fact, established that the claimant had worked in other departments for the phone company before being assigned to the position that she held at the time of her discharge. There was some dispute as to whether this reassignment was a promotion to a higher position or merely a lateral transfer within the organization. In any event, it was necessary that she undergo considerable training before being given the full responsibility at her new station, and she was given all the training which the telephone company provides to qualify employees for this position. Within a short period of time after the completion of the training, it was noted that her work was very unsatisfactory and far below acceptable standards. Her supervisor began a program of very close supervision, and repeatedly brought to the claimant's attention the defects in her work. Claimant readily admitted her failures and shortcomings.
Claimant was then put on probation and given notice that her performance would have be show 100% Improvement or she would be fired. The quality of her work, however, continued to deteriorate. Claimant maintains that she liked her work very much and that she was trying her utmost, but that she was unable to keep up with the volume of her work and that she frequently had misunderstandings as to its proper execution. It was also established that other girls in the department, who had undergone the same training and were working under the same conditions, were not having difficulty in successfully performing their tasks; and two of these girls testified from their observation that the claimant did like her job and was apparently doing the best that she could.
At the conclusion of the testimony, the referee found
'The supervisor talked to the claimant about most (of) the phases of her work because the claimant had a lot of misunderstanding of her job requirements; that the claimant had received training, but that the claimant seemingly was not capable of doing the work; that she had assumed that the claimant was ready for promotion but that she lacked the skills necessary. The claimant testified that she liked her job and she did try to do her work although she did not meet the high performance required by her supervisor and that she had asked for more training.
On this record it is concluded that the claimant became separated from work because of her inability to follow instructions of the business office and that that was the primary reason for her separation from work.'
The selection of the proper section of the statute to be applied is entirely dependent on the determination of fact, and in view of the findings of fact which are substantiated in the record, the Commission properly awarded full benefits under 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(k).
As we stated in Tague v. Coors Porcelain Co., 30 Colo.App. 158, 490 P.2d 96, which involved the application of the same sections of the statute, 'Our function as (a) 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. Curtis v. Industrial Commission, 167 Colo. 462, 447 P.2d 1012.' See Tague v. Coors Porcelain Co., 29 Colo.App. 226, 481 P.2d 424.
Order affirmed.
SILVERSTEIN, C.J., and ENOCH, J, concur.