Craig W. Parker, Petitioner,
v.
Daniels Motors, Inc., and
the Industrial Commission
of the State of Colorado,
Respondents
No. 86CA0131
738 P.2d 68
Colorado
Court of Appeals,
Div. I.
April 23, 1987
Stephen J. Sletta, Attorney for Petitioner.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy
Attorney General, Richard H. Forman, Solicitor General, Jill M. M.
Gallet, Assistant Attorney General, Attorneys for Respondent
Industrial Commission.
No appearance for Respondent Daniels Motors, Inc.
KELLY, Judge.
Craig W. Parker (claimant) seeks review of a final order of the
Industrial Commission denying him unemployment benefits under §
8-73-108(5)(e)(XX), C.R.S. (1986 Repl. Vol. 3B) (failure to meet
established job performance standards). We affirm.
Claimant, a service advisor for a Chevrolet dealership, was
discharged when he returned to work after a sick leave. Claimant's
supervisor testified that claimant was fired because he had made
excessive errors in repair estimates and also gave a customer an
unauthorized warranty on a part. The supervisor stated that claimant
was not careful and attentive to detail in his work. Claimant
admitted making errors, but asserted that he was not at fault or
that the errors were not excessive for his level of experience. The
supervisor testified that claimant's errors were excessive and
greater than those of the other service advisors. The supervisor
also stated that he had warned claimant about his performance, but
claimant did not improve.
The Commission concluded that claimant was discharged for failure
to meet established job performance standards, and denied all
benefits attributable to the employer or twenty-five times
claimant's weekly benefit amount, whichever was less.
On review, claimant contends that the Commission erred in denying
him benefits based on failure to meet established job performance
standards. Claimant argues that the Commission did not adequately
define the standards applicable to claimant's job. We disagree.
"Failure to meet established job performance standards" means
that claimant did not do the job for which he was hired and which he
knew was expected of him. Dawson v. Industrial Commission,
660 P.2d 924 (Colo. App. 1983). Here, although claimant presented
contrary testimony, there was ample testimony from the supervisor
about the performance standards for service advisors, his warnings
to claimant, and claimant's excessive errors. The Commission's
resolution of this conflicting evidence is binding on review. In
re Claim of Krantz v. Kelran Constructors, Inc., 669 P.2d 1049
(Colo. App. 1983). It was not necessary that the Commission describe
the job performance standard in any greater detail. See In re
Claim of Allmendinger v. Industrial Commission, 40 Colo. App.
210, 571 P.2d 741 (1977).
Claimant also contends that the Commission erred in denying him
benefits, arguing that under § 8-73-108(5)(g), C.R.S. (1986 Repl.
Vol. 3B), his benefits could be deferred for ten weeks, but not
denied. We disagree.
The purpose of the unemployment compensation act is to provide
protection to those unemployed through no fault of their own.
Section 8-70-102, C.R.S. (1986 Repl.Vol. 3B). Unemployment
compensation benefits are not provided to an employee whose
separation from employment is voluntary or for cause. Section
8-73-108(5)(e), C.R.S. (1986 Repl. Vol. 3B); see Industrial
Commission v. Moffat County School District, 732 P.2d 616 (Colo.
1987); Denver Post Corp. v. Industrial Commission, 677 P.2d
436 (Colo. App. 1984).
Section 8-73-108(5)(e) provides:
"Subject to the maximum reduction
consistent with federal law, and insofar as consistent with
interstate agreements, if separation from employment occurs
for [failure to meet established job performance standards],
the employer from whom such separation occurred shall not be
charged for benefits which are attributable to such
employment and, because any payment of benefits which are
attributable to such employment out of the fund as defined
in Section 8-70-103(13) shall be deemed to have an adverse
effect on such employer's account in such fund, no payment
of such benefits shall be made from such fund . . . ."
By the language of this provision, except to the extent required
by federal law, a claimant is not entitled to any benefits
attributable to employment terminated voluntarily or for cause,
since neither the employer nor the fund can be charged for those
benefits.
Claimant, however, argues that § 8-73-108(5)(g) overrides the
above disqualification provision; that section provides:
"If a separation from employment subject
to adjudication under this subsection (5) occurs for any of
the reasons enumerated in paragraph (e) of this subsection
(5) and such separation is the most recent separation from
employment, any benefits to which the claimant
is entitled shall be deferred for ten weeks."
These two subsections must be read together to give meaning and
effect to both. See Colorado Department of Social Services v.
Board of County Commissioners, 697 P.2d 1 (Colo. 1985). Section
8-73-108(5)(e) provides that claimant is not entitled to benefits
attributable to the terminated employment, while § 8-73-108(5)(g)
provides the time for payment of "any benefits to which the claimant
is entitled." We hold that § 8-73-108(5)(g) refers to the deferral
of any benefits attributable to other employments to which claimant
may be entitled, and does not negate the plain disqualification
provisions of § 8-73-108(5)(e).
Order affirmed.
Judge Pierce and Judge Metzger concur.
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