Action Key Punch Service, Inc., Petitioner,
v.
Industrial Commission of
the State of Colorado and
Deborah J. Butler,
Respondents
No. 85CA0329
709 P.2d 970
Court of
Appeals of Colorado,
Div. III.
October 24, 1985
Bourke and Jacobs, P.C.; Charles H. Jacobs; Peter S. Ely, Denver,
Colorado, Attorneys for Petitioner.
Duane Woodard, Attorney General; Charles B. Howe, Chief Deputy
Attorney General; Richard H. Forman, Solicitor General; Mary Karen
Maldonado, Assistant Attorney General, Denver Colorado, Attorneys
for Respondent Industrial Commission.
No appearance for Respondent Deborah J. Butler.
METZGER, Judge.
Action Key Punch Service, Inc., (employer) seeks review of a
final order of the Industrial Commission granting a full award of
benefits to Deborah Butler (claimant) on the grounds that the
termination of her employment was the result of her refusal, with
good cause, "to work overtime without reasonable advance notice." We
set the order aside.
Claimant was a key punch operator. On Thursday, April 19, 1984,
the employer announced that there would be mandatory overtime work
for the following Saturday. Mandatory overtime was sometimes
required by the employer, and claimant had worked overtime on prior
occasions.
Upon learning of the overtime, claimant reminded her supervisor
that she would be unable to work on Saturday because she was
planning a birthday party for her husband. The supervisor told
claimant that if she did not work on Saturday she would be placed
"on-call." "On-call" meant that claimant would report only if
called, and claimant interpreted this to mean she was discharged.
Consequently, claimant did not return to her job after April 19.
Contrary to the employer's evidence, claimant testified that she
was not told that it was possible to make up the overtime. Further,
she stated that she could not have worked overtime on Thursday
because of a doctor's appointment, nor on Friday because it was a
religious holiday.
The Commission held that claimant was discharged for refusal to
work the mandatory overtime. Further, it found that claimant was
unable to work overtime on Thursday and Friday, and that the
birthday party constituted "good cause" for refusing to work on
Saturday. See § 8-73-108(4)(k), C.R.S. (1984 Cum. Supp.).
The employer contends that the Commission erred in finding that
claimant's desire to give a birthday party for her husband
constituted "good cause" for failing to work overtime on Saturday.
We agree.
Section 8-73-108(4)(k) limits "good cause" for refusing to work
overtime to "compelling personal reasons affecting either the worker
or his immediate family." The statute does not provide examples of
"compelling personal reasons," nor do we find any Colorado cases
interpreting the statute.
We interpret the statute in light of the General Assembly's
statement that "unemployment insurance is for the benefit of persons
unemployed through no fault of their own; and that each eligible
individual who is unemployed through no fault of his own shall . . .
. receive a full award of benefits." Section 8-73-108(1)(a), C.R.S.
(1984 Cum. Supp.). "Fault," as that term is used in the statute, "is
not limited to something worthy of censure but must be construed as
meaning failure or volition." City & County of Denver v.
Industrial Commission, 666 P.2d 160 (Colo. App. 1983).
In our view, "compelling personal reasons affecting either the
worker or his immediate family" are circumstances so significant
that they would deprive a reasonable person of the ability to make a
truly volitional choice about whether to work overtime. The
compulsion engendered by a given set of circumstances must be judged
by an objective standard rather than by the claimant's subjective
outlook. See Gatewood v. Russell, 29 Colo. App. 11, 478 P.2d
679 (1970).
The foregoing analysis is supported by Evenson v. California
Unemployment Insurance Appeals Board, 62 Cal. App. 3d 1005, 133
Cal. Rptr. 488 (1976). In Evenson, the court considered
whether an employee's disenchantment with a union constituted
sufficient "good cause" for his refusal to pay union dues. It
determined that he was not entitled to benefits after his employment
was terminated because of that refusal. The court stated that "good
cause may exist for personal reasons but those reasons must be so
imperative and compelling as to make the voluntary leaving
involuntary." The court stated the test as follows:
"In general, good cause as used in an unemployment compensation
statute, means such a cause as justifies an employee's voluntarily
leaving the ranks of the employed; the quitting must be for such a
cause as would, in a similar situation, reasonably motivate the
average able-bodied and qualified worker to give up his or her
employment with its certain wage rewards in order to enter the ranks
of the unemployed."
Applying these principles here, we conclude that the Commission's
findings of fact do not support the conclusion that claimant quit
for compelling personal reasons. See § 8-74-107(6)(c), C.R.S. (1984
Cum. Supp.). While claimant understandably desired to give the
birthday party for her husband, we do not think a reasonable person
would refuse to work overtime and thereby sacrifice employment for
this reason.
The employer further contends that we should hold that claimant
is disqualified from receiving benefits, as a matter of law,
pursuant to § 8-73-108(5)(e)(I), C.R.S. (1984 Cum. Supp.) (quitting
because of dissatisfaction with standard hours of work). We decline
to do so.
The Commission noted that there was evidence that claimant's
termination was attributable to harassment not related to
performance of the job. If such were found to be the cause of the
termination, claimant would be entitled to benefits under §
8-73-108(4)(o), C.R.S. (1984 Cum. Supp.). However, the Commission
declined to make findings in this regard because, in its view, §
8-74-108(4)(k) was dispositive. Since the harassment issue has not
been considered, it would be improper for this court to enter any
order concerning claimant's ultimate right to benefits.
The order of the Commission is set aside. The cause is remanded
to the Commission with instructions to refer the matter to a referee
for entry of appropriate findings and entry of a new order. Further
hearings may be held at the discretion of the Commission.
Judge Berman and Judge Tursi concur.
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