Albaitis v. Industrial Commission , 609 P.2d 1118 ( 1980 )

VAN CISE, Judge.

Petitioner seeks review of an order of the respondent Industrial Commission reducing his unemployment benefits. We affirm.

Shortly after the termination of his employment, petitioner applied for unemployment benefits. Respondent Colorado Division of Employment and Training (Division) found that petitioner was discharged “for loafing on the job and conducting personal business during working hours” and therefore disqualified him from receiving benefits for a period of 13 weeks, citing § 8-73-108(5), C.R.S. 1973 (1978 Cum. Supp.).

This decision was affirmed by a referee and by the Commission, both of which cited § 8-73-108(5), C.R.S. 1973 (1978 Cum.Supp.) as justification for the reduction in petitioner’s benefits. On appeal, petitioner contends that respondents erred in their interpretation of the statute, that, instead, the statute allows his benefits to be reduced only if it is found that he was terminated for one of the specified “reasons” set forth in one or more of the subsections of § 8-73-108(5). The reasons for discharge found by the Division were not included in the specified “reasons.” We do not agree.

As analyzed by the Commission in its findings of fact and order, in the 1976, and before the 1977, amendments to § 8-73-108, C.R.S. 1973, was a subsection (6), see Colo. Sess.Laws 1976, pp. 347-348, which allowed a determination of benefits based on attributing fault to one party or the other when the reason for separation was not one of those specifically set forth in (4) or (5). With the 1977 repeal of that subsection (6), the Commission must look to the overall legislative intent as spelled out in the Colorado Employment Security Act. This intent is stated in § 8-73-108(1), C.R.S. 1973 (1978 Cum.Supp.), as follows:

“In the granting of benefit awards, it is the intent of. the general assembly that . unemployment insurance is for the benefit of persons unemployed through no fault of their own; . that the circumstances of his separation shall be considered in determining the amount of benefits he may draw; and that certain acts of individuals are the direct and proximate cause of their unemployment and such acts may result in such individuals receiving a reduced award.”

In subsection (4) and (5) of § 8-73-108, C.R.S. 1973 (1978 Cum.Supp.), those sitúa-tions in which a grant of a full award or a reduced award of benefits are authorized are elaborated. Each subsection contains additional subsections explaining the conditions affecting the award of benefits. In each primary subsection, a preamble allows consideration of other factors relevant to an award of bénefits. Subsection (4) lists 14 situations in which full awards may be granted. Preceding the listing of these conditions is the following sentence:

“The following reasons shall be considered, along with any other factors which may be pertinent to such determination.” (emphasis supplied)

And (5), preceding a list of 23 situations in which a reduced award may be granted, provides:

“The determination of whether or not a separation from employment shall result in a reduced award . . . shall be the responsibility of the division. The following reasons, along with other pertinent factors, shall be considered in determining the direct and proximate cause of the separation.” (emphasis supplied)

Thus, in order to carry out the legislative intent specified in § 8-73-108(1), C.R.S. 1973 (1978 Cum.Supp.), the statute allows the Division and the Commission to exercise discretion, based on a consideration of all of the pertinent factors of the particular case. Limiting the full award and reduced award sections to the enumerated “reasons,” without including the general language “other pertinent factors” would contravene the legislative intent by, in effect, denying any benefits to individuals whose situations do not fit precisely into the job conditions listed.

Therefore, we hold that in determining the direct and proximate cause of a claimant’s separation and whether that claimant is entitled either to a full or a reduced award of benefits, the Division and the Commission shall consider the “reasons” specifically enumerated in the statute and “any other factors which may be pertinent to such determination.” Absent an abuse of discretion, that determination shall be upheld on appeal. We find no abuse here, and therefore affirm the Commission’s order.

BERMAN, J., concurs. PIERCE, J., dissents.