Kathy Anne Toston, Plaintiff in Error,
v.
Industrial Commission of
the State of Colorado (Ex-officio
Unemployment Compensation Commission of Colorado),
Defendant in Error.
No. 22064.
160 Colo. 281, 417 P.2d 1
Supreme
Court of Colorado,
In Department.
July 25, 1966.
David W. Sarvas, L. L. Nathenson, Lakewood, for plaintiff in
error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen.,
James D. McKevitt, Asst. Atty. Gen., Denver, for defendant in error.
PRINGLE, Justice.
This action is here on writ of error to review a final judgment
of the district court affirming the findings and order of the
Industrial Commission of the State of Colorado, Ex Officio
Unemployment Compensation Commission, which denied plaintiff in
error the unemployment compensation which she claimed under the
Employment Security Act.
We will refer to plaintiff in error as Claimant and to defendant
in error as the Commission.
The facts, which are not in dispute, are as follows: Claimant was
employed as a comptometer operator with Beatrice Foods. Claimant was
released from her employment, through no fault of her own, on March
6, 1965. Failing to find other employment, Claimant applied for
unemployment compensation on March 16, 1965. A very short time
thereafter, the State Employment Office referred her to a
comptometer position with H & R Block Co. The job was, however,
temporary and would have lasted no longer than thirty days. Although
Claimant contacted H & R Block Co. with regard to the possibilities
of obtaining a permanent job with them, the Block Company informed
her that they were in need of someone for no longer than thirty days
and would not continue her employment after the thirty days.
Claimant, thereupon, explained to the State Employment Office that
she did not want the temporary job. As her reason, she stated that
she was afraid of missing an opportunity of getting a permanent job
which might become available during the thirty day period in which
she might be employed by H & R Block.
The deputy of the Commission thereupon concluded that in refusing
the temporary employment her action constituted a refusal by the
Claimant to accept suitable work as provided in C.R.S. 1963,
82--4--8(5)(d), and that, under this section, no award of benefits
should be granted.
Pursuant to the statutory procedure, the matter was ultimately
heard by the Commission and upon appeal by the district court, and
in each case the denial of benefits was affirmed.
The question presented to this Court by Claimant's appeal is
whether her refusal to accept the temporary job under the
circumstances of this case constituted, as a matter of law, a
refusal of suitable work or refusal of referral to suitable work
within the meaning of C.R.S. 1963, 82--4--8(5)(d). The question is
answered in the negative. A refusal to accept an offer of temporary
employment does not, in and of itself, end the period of
unemployment.
In determining the suitability of the offered employment, the
statute with which we are concerned offers the following
considerations:
"* * * the degree of risk involved to his
(claimant's) health, safety and morals, his physical fitness
and prior training, his experience and prior earnings, his
length of unemployment and prospects for securing
work in his customary occupation and the distance of the
available local work from his residence shall be considered.
* * *" (Emphasis supplied.)
As applied to the instant case, the temporary job as comptometer
operator at H & R Block Co. was not refused by claimant on the
grounds that it constituted a measurable degree of risk to her
health, safety and morals; nor was the job refused on the ground
that it was incompatible with her physical fitness, prior training
and experience or prior earnings. Not only did the job require her
skills as a comptometer operator, but it also paid 23 cents more per
hour than her former wage of $1.60 per hour at Beatrice. The job,
however, was temporary, and, since claimant had been unemployed
hardly more than two weeks, she assumed that the prospects of
securing permanent work as a comptometer operator were good.
Essentially, the claimant refused as unsuitable a thirty day job for
the reason that it would have eliminated her, for that period of
time, from the market of suitable permanent jobs which might have
been made available to her by the State Employment Office or through
her own efforts.
Under these circumstances, claimant's refusal to accept a
temporary job, in our view, did not, in and of itself, constitute a
refusal to accept suitable work since she was entitled to a
reasonable time in which to compete in the labor market for
available jobs of a permanent nature for which she had the skill and
at a rate of pay commensurate with her prior earnings. Bayly Mfg.
Co. v. Department of Employment, 155 Colo. 433, 395 P.2d 216.
In Bayly, supra, the work which was refused was for a wage
materially lower than the wage previously earned. Nevertheless, the
rationale of that decision applies with equal force to the instant
case wherein the claimant is seeking permanent employment but has
been offered a temporary position.
Although claimant must be afforded a reasonable time within which
to seek out jobs which are satisfactory to her, the status of jobs
which are initially unsuitable does not remain constant. In other
words, work which was unsuitable at the beginning of the employment
may become suitable when consideration is given to the length of
unemployment and the prospects of securing claimant's accustomed
work. Hallahan v. Riley, 94 N.H. 48, 45 A.2d 886.
What constitutes a reasonable time in these cases is not a matter
to be answered by rigid formulas. Rather, it must initially be
determined as a question of fact under the circumstances of each
individual case by the appropriate agency. Bayly, supra.
The judgment is reversed and the cause remanded to the district
court with directions to remand the matter to the Commission for
determination of such compensation as may be due claimant in
accordance with the views herein expressed.
Day and McWilliams, JJ., concur.
Printer-friendly version