Opinion
April 11, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1151
Robert L. Pitler, 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 of Colorado (Ex-officio Unemployment Compensation Commission of Colorado).
SMITH, Judge.
Snelling & Snelling appeals from an Industrial Commission decision affirming a referee's grant of a full award of unemployment compensation to its former employee, Mrs. Patricia L. Keen.
Mrs. Keen was denied unemployment compensation benefits on her initial claim. She appealed requesting a hearing before a referee of the Industrial Commission. At the hearing, claimant, her former immediate supervisor, and the General Manager of Snelling & Snelling testified. The referee found certain facts from which he concluded that the claimant should be granted a full award of benefits. Snelling & Snelling appealed to the Industrial Commission which upheld the referee's decision. Pursuant to C.R.S.1963, 81--4--10, as amended by Colo.Sess.Laws 1970, Ch. 69, s 1 et seq., Snelling & Snelling now appeals to this court. We affirm.
The evidence presented at the hearing disclosed that claimant had been advised at the time of her hiring by the general manager that should she need financial aid, he could make arrangements to help her. The claimant, almost 10 months later, called the general manager asking for aid in the form of an advance against commissions already due her. When this aid was denied, the claimant became quite distraught and irrational. While in this upset state, claimant made certain comments to her immediate supervisor questioning the wisdom of her continued employment with an employer who had no confidence in her. From these statements, claimant's supervisor concluded that claimant was quitting her job. Claimant, still distraught, left her place of employment during the lunch period, and, when she returned to work approximately one hour later, she was informed she had been replaced for the reason that she had quit her job. The referee concluded, based upon these facts, that the claimant should be awarded a full award of benefits under the Optional Award Authority contained in 1965 Perm.Supp., C.R.S.1963, 82--4--8(7)(b)(ii).
Snelling & Snelling argues that an employee who terminates his employment because of a failure to receive a salary advance is precluded from unemployment compensation by 1965 Perm.Supp., C.R.S.1963, 82--4--8(6)(b)(i), which provides for no award where an employee voluntarily terminates because of dissatisfaction with working conditions under which other employees must work. It also observes that Regulation 39(C), published by the Industrial Commission and regulating the application of 1965 Perm.Supp., C.R.S.1963, 82--4--8(7), upon which the referee based his award, forbids optional awards where an employee is basically responsible for the termination of employment. The law is correctly stated, but is not applicable to the facts of this case as determined by the referee. The referee found that the employee was not basically responsible for the termination of her employment. He found that while the claimant had made statements when in an obviously distraught condition, she did not quit her job. These findings are supported by competent evidence.
The only other question remaining is whether the law applied to these facts by the referee was proper. The referee expressly based his decision upon the optional award provisions of 1965 Perm.Supp., of C.R.S.1963, 82--4--8(7) which allows a determination of a full award where claim for benefits is not specifically covered under other provisions of the statute. Regulation 39(B) of the Commission concerning the application of this statute reads as follows:
'A full award shall be made in any claim within the scope of the department's optional award authority if the employer is basically responsible for the worker's separation.'
The granting of a full award under the optional award provision in this case was correct.
Snelling & Snelling has also asserted that the failure of the referee to investigate claimant's statement that she was actively seeking work was ground for reversal. At the hearing, the referee made inquiry into this matter and was told by the claimant that she was seeking work, but had not been able to find a job. No other evidence on this issue was presented, and that unrefuted testimony is sufficient to comply with the requirement of 1965 Perm.Supp., C.R.S.1963, 82--4--7(8), which, as a prerequisite to an award, requires a claimant to be actively seeking work.
Finally, Snelling & Snelling argues that since if was not represented by counsel at the hearing, it was unable to present evidence necessary for a proper determination of the issues. The statute does not require the parties to have counsel at such a hearing. Notice was given to Snelling & Snelling of the claimant's intention to be represented by counsel, and Snelling & Snelling, if it had desired, had adequate opportunity to be present with counsel at the hearing. We find this contention of Snelling & Snelling to be without merit.
The order of the Commission is affirmed.
COYTE and PIERCE, JJ., concur.