Deborah K. Rulon, Petitioner,
v.
The Industrial Commission
of the State of Colorado, and
T.M., Ltd., Respondents.
No. 86CA0386.
728 P.2d 739
Colorado
Court of Appeals,
Div. I.
Oct. 2, 1986.
Colorado Rural Legal Services, Cynthia M. Hartman, Fort Collins,
for petitioner.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty.
Gen., Richard H. Forman, Sol. Gen., Aurora Ruiz-Hernandez, Asst.
Atty. Gen., Denver, for respondent Industrial Com'n.
No appearance for respondent T.M., Ltd.
STERNBERG, Judge.
Deborah K. Rulon, claimant, seeks review of a final order of the
Industrial Commission which denied her unemployment benefits based
on its finding that her termination was within the ambit of Sec.
8-73-108(5)(e)(I), C.R.S. (1985 Cum.Supp.) in that she quit because
of dissatisfaction with her working conditions. We set aside the
order.
Claimant worked for employer, a supermarket, for five years,
full-time and, most recently, part-time. There was no uniformity of
rates of pay for full- and part-time employees. When claimant began
working in the office, her pay was raised above that of other
full-time employees. Her rate of pay was not reduced when she left
the office to return to work as a full-time checker in the summer of
1982, and it was also not reduced when she began working part-time
four months before she quit.
A few weeks before claimant left, the store manager decided to
reduce claimant's hourly wage to the same rate as other part-time
workers, a reduction of 80 cents an hour. The Commission found that
his reasons for this decision were that it had become difficult to
schedule claimant's hours to accommodate her wish to work part-time,
and that he felt she had become undependable by not always working
the number of hours for which she had been scheduled. The store
manager did not discuss with claimant his dissatisfaction with her
performance, and he did not tell her in advance that he was reducing
her pay. The manager testified, further, that he would have been
willing to continue to pay her the higher rate if her performance
had continued to be satisfactory.
After she received a paycheck reflecting the cut in her hourly
rate, claimant attempted, unsuccessfully, to discuss the reduction
with the store manager. She then spoke to the store owner, who
ordered that her former rate of pay be reinstated until she could be
officially notified of the reduction. Claimant's next paycheck was
for the higher rate of pay, but shortly afterwards, the office
manager told her that her hourly rate would be reduced by 80 cents
in the future.
This conversation took place in the presence of other employees,
and became somewhat heated. During the discussion, the office
manager told claimant that in her personal opinion, claimant was not
a loyal employee. The next day, claimant resigned, citing the pay
cut and what she considered to be insulting treatment by the office
manager. Claimant testified at the hearing that the pay cut was the
main reason for her resignation, and the Industrial Commission found
that she would not have quit, despite the argument with the office
manager, if her wages had not been reduced.
The Commission found that claimant quit because of
dissatisfaction with her working conditions, concluding that her
rate of pay was reduced to the prevailing rate for part-time clerks,
and that her complaints about the treatment she received from the
office manager amounted to dissatisfaction with her supervisor.
Claimant argues here that the Industrial Commission erred as a
matter of law in applying Sec. 8-73-108(5)(e)(I) to the facts of her
case. We agree.
The evidence presented shows that claimant's hourly rate was not
reduced primarily for the purpose of bringing her pay into line with
the prevailing rate in the supermarket. The store manager testified
that he had instructed the office manager to leave claimant's salary
at the higher rate when she began working part-time, and he stated
that he would have been willing to continue to pay her the higher
rate if her performance had continued to be satisfactory.
Section 8-73-108(5)(e)(I) permits a denial of benefits if a
worker quits because of dissatisfaction with "prevailing rates of
pay," and requires a determination whether that rate of pay is
standard for that type of work in the industry. The real issue
precipitating claimant's resignation, however, was not the rate to
which her wages were cut. In fact, claimant testified that she would
have accepted the pay cut had it been made when she moved from
full-time office work to part-time checking. The issue which caused
claimant to quit, as the Industrial Commission found, was the fact
(and the manner) of the pay cut.
An eligible individual is entitled to a full award of benefits if
she becomes unemployed through no fault of her own. Section
8-73-108(1)(a), C.R.S. (1985 Cum.Supp.); Sims v. Industrial
Commission, 627 P.2d 1107 (Colo.1981). In this regard the
concept of fault means a volitional act, and is not necessarily
related to culpability. Zelingers v. Industrial Commission,
679 P.2d 608 (Colo.App.1984); see also City & County of Denver v.
Industrial Commission, 666 P.2d 160 (Colo.App.1983). Thus, in
the absence of a volitional act by the employee, there can be no
fault on her part within the meaning of the unemployment statute.
Zelingers v. Industrial Commission, supra.
Undisputed testimony established that the reasons for claimant's
pay cut were her undependability and scheduling problems, and that
if these problems had not occurred, the store manager would have
been willing to continue to pay her at the higher rate. The
Commission found, further, that claimant was given no notice that
her performance was unsatisfactory. Claimant, thus, had no
opportunity to correct the problem and remain at her higher rate of
pay. Under these circumstances, the lack of notice to claimant of
allegedly unsatisfactory job performance rendered unreasonable the
subsequent reduction in pay under the provisions of Sec.
8-73-108(4)(e), C.R.S. (1985 Cum.Supp.). It cannot be said,
therefore, that claimant was at fault in her separation from
employment.
Accordingly, the order of the Industrial Commission is set aside
and the cause is remanded to the Industrial Claims Appeals Office
for entry of an order awarding full benefits to claimant pursuant to
Sec. 8-73-108(4)(e), C.R.S. (1985 Cum.Supp.).
Pierce and Metzger, JJ., concur.
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