George L. Patterson
v.
Industrial Commission of
Colorado (Ex-Officio
Unemployment Compensation Commission
of
Colorado) and Colorado Interstate
Gas Company
Nos. 76-709, 76-879
39 Colo. App. 255, 567 P.2d
385
Colorado
Court of Appeals
Div. I.
April 28, 1977
Theodore M. Smith, for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy
Attorney General, Edward G. Donovan, Assistant Attorney General,
John Kezer, Assistant Attorney General, for respondent Industrial
Commission of Colorado.
Geddes, MacDougall & McHugh, P.C., Robert C. McHugh, for
respondent Colorado Interstate Gas Company.
COYTE, Judge.
In this unemployment compensation proceeding, the claimant,
George Patterson, seeks review of the order of the Industrial
Commission reducing claimant's entitlement to benefits. We set aside
the order.
The following facts are uncontroverted. Claimant had been
employed by respondent, Colorado Interstate Gas Company, for
approximately twenty years prior to his termination. In April 1976,
claimant became involved in a verbal altercation with a company
supervisor. As a result of the incident, the company determined that
for disciplinary purposes claimant should be transferred to its
Kansas offices. The order of transfer was communicated to claimant,
who, relying on a company policy to the effect that transfers would
not be accomplished absent an employee's consent, declined to report
to the Kansas facility. The company thereupon discharged claimant.
Claimant subsequently initiated a claim for unemployment
compensation benefits and was awarded full benefits by the deputy.
After hearing, the referee concluded the claimant had deliberately
refused to accept a reasonable order of the employer. Accordingly,
the referee reversed the deputy's decisions, and, pursuant to §
8-73-108(6)(h), C.R.S. 1973, disqualified claimant from the receipt
of benefits for a 13-week period.
On September 23, 1976, the Commission issued its decision
affirming the findings and award of the referee. Within 10 days,
claimant filed a petition for review before the Commission and also
before this court. On October 20, 1976, the Commission issued a
"supplemental award" which affirmed its previous decision. While a
certificate of mailing is appended to the supplemental award, the
certificate bears no signature attesting that a copy of the decision
had, in fact, been properly deposited in the mail.
In December 1976, claimant filed a notice of appeal and a second
petition to review with this court. By motion and order, the two
petitions were consolidated, and the company's request that the
consolidated appeal be dismissed was denied with leave to argue the
issue in briefs.
I.
The company maintains that, inasmuch as claimant's notice of
appeal was not timely filed, this court lacks jurisdiction to
proceed in the matter. In view of the circumstances presented here,
we disagree with this argument.
Section 8-74-109, C.R.S. 1973, provides that an action to review
a final order of the Commission must be commenced within 20 days of
the date of issuance of the order. Compliance with the statutory
procedures is mandatory. Washburn v. Industrial Commission,
153 Colo. 500, 386 P.2d 975 (1963).
However, the Commission is required by statute to "promptly
notify" interested parties of a decision, § 8-74-105, C.R.S. 1973,
and a failure to do so may constitute error of constitutional
dimension. Where an attorney through no fault of his own is denied
notice of a critical determination in a proceeding and consequently
does not complete the procedural requisites necessary to preserve
his client's right to appeal, procedural due process requires that
the appeal be allowed. Mountain States Telephone & Telegraph Co.
v. Department of Labor, 184 Colo. 334, 520 P.2d 586 (1974); see
also Zimmerman v. Industrial Commission, 108 Colo. 552, 120
P.2d 636 (1941).
In this case, the irregularity in the certificate of mailing
establishes a prima facie lack of notice, cf. Zimmerman v.
Industrial Commission, supra, and, in conjunction with
claimant's denial of receipt of the supplemental award, sufficiently
rebuts any inference to be drawn from the affidavits of the
company's counsel asserting that they had received copies of the
award. Fundamental fairness thus dictates that claimant's review be
permitted. Mountain States Telephone & Telegraph Co. v.
Department of Labor, supra.
II.
Claimant argues that in light of the company rules regarding
transfers, the Commission erroneously found that he had been
discharged for insubordination and thus erroneously reduced his
award. We agree.
While § 8-73-108(6)(h), C.R.S. 1973, does permit reduced awards
for a claimant separated from employment by reason of his
insubordination, there is no evidence to support the Commission's
finding that the claimant here had deliberately disobeyed a
reasonable instruction. To the contrary, the uncontroverted evidence
in the record reveals that claimant was terminated as a consequence
of the employer's violation of the employment contract, which
circumstance entitled claimant to a full award of benefits provided
that he had exhausted any contractual remedies. See §
8-73-108(4)(h), C.R.S. 1973; Wade v. Hurley, 33 Colo. App.
30, 515 P.2d 491 (1973).
It is not disputed that the alleged act of insubordination
leading to claimant's termination was his refusal to accept a
transfer. Nor does the company deny that its stated policy of
permitting an employee to decline a transfer, a copy of which
directive is a part of this record, was in effect at the time of
claimant's refusal. Further, uncontradicted testimony and
documentary evidence in the record show that claimant attempted to
resolve the dispute through available company procedures.
Accordingly, it is immaterial to the issues here that claimant's
employment contract was one terminable at will, see Justice v.
Stanley Aviation Corp., 35 Colo. App. 1, 530 P.2d 984 (1974), or
that the company might have discharged claimant immediately
following the altercation without affording him an opportunity to
transfer. By selecting claimant's refusal to accept transfer as the
ground of termination, the company directly contravened its own
rule. Therefore, § 8-73-108(4)(h), C.R.S. 1973, was dispositive of
the claim for benefits, and the Commission erred in reducing
claimant's award under § 8-73-108(6)(h), C.R.S. 1973.
The order is set aside and the cause remanded with directions to
award claimant a full entitlement of benefits.
Judge Smith and Judge Van Cise concur.
Printer-friendly version