ADAMS v. INDUST. COMM., 31 Colo. App. 340 (1972)

(501 P.2d 1334)

Robert E. Adams v. Industrial Commission of the State of Colorado (Ex-Officio Unemployment Compensation Commission of Colorado) and Martin Marietta Corporation

No. 72-013Colorado Court of Appeals.
Decided October 11, 1972.

Employee, having been offered new position, tendered his resignation from his job, but offer of new position was subsequently withdrawn. From a denial of unemployment compensation benefits, employee appealed.

Order Reversed

1. SOCIAL SECURITY AND PUBLIC WELFARE — Unemployment Compensation Claimant — Offered Job — Withdrawn — Before Begun — All Criteria Met — Benefits Coverage — If — “Better Job” — Remanded. Where unemployment compensation claimant resigned his employment after accepting offer of new job, but new job offer was subsequently withdrawn before claimant began work at it, all criteria for unemployment benefits coverage would be met if the new job offered were a “better job” as defined by the statute; thus, it was necessary for Industrial Commission to make a determination as to whether the new job were a “better job” and the case must be remanded for that determination.

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Appeal from the Final Order of the Industrial Commission of the State of Colorado

Vernon P. Playton, for petitioner.

Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Robert L. Harris, Assistant, for respondent Industrial Commission of Colorado.

Division I.

Opinion by JUDGE PIERCE.

Claimant, Robert E. Adams (Adams), was an employee of Martin Marietta Corporation (Martin). While at Martin he was offered a similar job by a federal agency. He accepted this job and gave Martin two weeks’ notice by submitting a verbal and written resignation which was accepted by Martin.

Two days prior to the final day that he was to be employed by Marin, he was notified by the government agency that it was withdrawing its offer to him. Upon being so informed, he attempted to withdraw his resignation from Martin. This offer was refused on the ground that someone had already been hired to take his place. Adams made further inquiries and discovered that applications were still being taken for the job that he had accepted with the government agency. The reasons for the withdrawal of the job offer are unknown to Adams.

Upon Martin’s refusal to allow him to withdraw his resignation, Adams filed a claim for unemployment benefits. The claim was denied by the Commission, pursuant to the provisions of 1965 Perm. Supp., C.R.S. 1963,

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82-4-8(6)(b)(vii), which states, in part, that no award shall be granted where a claimant is “quitting to accept other employment which cold not be construed as a better job as provided in subsection (4)(g) of this section.” Adams appeals.

It is his contention that the rule relied on by the Commission is inapplicable and that he is entitled to compensation under 1969 Perm. Supp., C.R.S. 1963, 82-4-8(4)(g).[1] Adams argues that the evidence established that the job he accepted was a better job, as defined by the statute, and that the offer was terminated for reasons over which he had no control, and in no event was for lack of work. Because of this, Adams contends that he is now entitled to an award

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of benefits. The Commission, however, concluded that where the new job did not materialize, it was not within the provisions of 1969 Perm. Supp., C.R.S. 1963, 82-4-8(4)(g). Because of this conclusion, the Commission stated that it was unnecessary to determine whether the new job met the criteria to qualify as a better job. We disagree.

In construing this statute, we must briefly review its recent history. The forerunner of 1969 Perm. Supp., C.R.S. 1963, 82-4-8(4)(g) [previously C.R.S. 1963, 82-4-8(3)(b)(v)] did not contain paragraph (iv). It did, however, contain the equivalent of sections (i) and (ii) with the exception that the statute specifically provided “no job shall be considered better . . . that does not last at least three months from the date of acceptance. . . .” In the case of Lidke v. Industrial Commission, 159 Colo. 580, 413 P.2d 200, our Supreme Court determined that the above quoted language meant that the ninety-day period mentioned in the statute started running from the date of acceptance of the new job, rather than from the date when the claimant actually began performing services in the new employment.

Thereafter, the statute was amended to its present form, and section (iv) was inserted. The Commission would have us hold that this amendment was meant to preclude claims arising out of events which occurred between the date of accepting the better job and actually commencing work. We cannot subscribe to the view that this was the intent of the legislature. To so hold would afford the claimant coverage had he reported to the new job and performed services for the new employer for even a moment of time, but deny

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it to him the moment before he started work. We interpret this addition to be only a clarification of the previous statute and to only indicate that the completion of the ninety-day limitation shall be computed from the date of actual performance of services on the new job. Under the facts before us, the ninety-day provision has no pertinence, for the claimant was prevented from commencing his performance of the new job by the action of the new employer.

[1] In so construing the Employment Security Act, we are recognizing that we should apply a liberal construction favoring claimants, Andersen v. The Industrial Commission, 167 Colo. 281, 447 P.2d 221. In viewing 1969 Perm. Supp., C.R.S. 1963, 82-4-8(4)(g) as applied to the facts before us, we find the following criteria for coverage: (1) The employee must resign to accept a better job; (2) he must accept the new offer of a position prior to his termination of employment with the old employer; (3) the new job must not have a termination date of less than one year and must last for at least ninety days from commencement of work, not acceptance date, unless the employee is unable to complete ninety days of employment on the new job through no fault of his own other than lack of work. The only reason for the inclusion of paragraph (iv) was to assist in defining when the ninety-day period is completed, if it is a factor in the applicable fact situation.

The order of the Commission is reversed and the case remanded to it for determination of the issue of whether or not the job accepted by the claimant was a “better job” and for such other proceedings as are not inconsistent with this opinion.

JUDGE SILVERSTEIN and JUDGE SMITH concur.

[1] (i) “Accepting a better job. In determining whether or not the job accepted is a better job, the division of employment shall consider, but shall not be limited to a consideration of, the rate of pay, the hours of work, and the probable permanency of the job quit as compared to the job accepted, the cost to the worker in getting to the job quit and to the job accepted, the distance from the worker’s place of residence to the job accepted in comparison to the distance from the worker’s residence to the job quit, and whether or not such worker acted as a reasonably prudent individual would have acted under the same or similar conditions. In addition to the above stated conditions, no job shall be considered better unless it is offered to and accepted by the worker prior to the date of his quitting and meets the following conditions set forth in subparagraphs (ii) and (iii) of this paragraph: (ii) It does not have a definite termination date of less than one year and it lasts at least ninety calendar days from the first date of employment on the job accepted unless sooner terminated under conditions of which, in the judgment of the division, the worker had no knowledge at the time he accepted the job and over which he had no control, but a job shall not be considered better if it lasts less than ninety days due to a lack of work, the absence of said knowledge and control notwithstanding; (iii) The ninety-day and one-year provisions set forth above shall not apply to a construction worker who quits a construction job within thirty days immediately preceding the termination date of the job quit and who at the time of his quitting has been offered and has accepted another construction job prior to the date of quitting, which other job offers employment for a longer period of time than remained available on the job quit unless the job accepted was terminated by a contract cancellation. (iv) For the purpose of this paragraph (g) the job accepted shall be considered to exist only for so long as the worker is actually in employment.”

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