Comegys v. Idaho Air National Guard

663 P.2d 648, 104 Idaho 767, 1983 Ida. LEXIS 443

• Court: Idaho Supreme Court
• Decided: February 15, 1983
• Docket: 14048
• Status: Published

Opinions

SHEPARD, Justice.

This is an appeal from an order of the Industrial Commission denying unemployment benefits to claimant-appellant Comegys. We reverse and remand for further proceedings.

Comegys was employed as a warehouseman for the Idaho Air National Guard. Comegys was discharged in June 1980 for allegedly “issuing approximately 15 worthless checks during the period of June 1979 through December 1979.” A policy of the Air National Guard was that an employee could be subjected to “disciplinary adverse action” for “improper conduct on or off the job.” A “major” offense subjecting an employee to “removal” was the “deliberate issuance of a check against an inadequate bank account balance or on a bank in which no account exists.” The evidence is conflicting regarding Comegys’ intent and whether or not some checks were written on a non-existent account.

Comegys applied for unemployment compensation, to which application the Guard responded that Comegys had been discharged for cause. Comegys was determined to be eligible for benefits. Upon appeal to an appeals examiner, it was determined that Comegys was discharged for misconduct in connection with his employment and therefore ineligible for benefits. That decision of the appeals examiner was in turn appealed to the Industrial Commission where the matter was referred to a referee. The referee issued findings of fact, conclusions of law and an order reversing the decision of the appeals examiner and essentially held that the record did not demonstrate that Comegys’ violation of the employer’s policy violated a rule relating to job performance or the disregard of standards of behavior which the employer had a right to expect of his employee. See Wroble v. Bonners Ferry Ranger Station, 97 Idaho 900, 556 P.2d 859 (1976). Upon review of the referee’s decision, the commissioners stated that they “disagree with the result reached by the referee;” and “that the claimant violated rules of the employer” which “constitutes misconduct in connection with his employment, as defined by the Idaho Supreme Court.”

Rather clearly, that order of the commission suffers from a number of deficiencies. That order does not either approve or reject the referee’s findings of fact nor does it purport to set forth the commission’s own findings of fact. Hence, this Court is without any basis to review the commission’s order to determine if it is based on substantial evidence. The order of the commission only states the ultimate legal conclusion, i.e., that the conduct of the claimant “constitutes misconduct in connection with his employment.” No factual basis is stated therefor, such as the employer’s reputation and good name were somehow injured or the conduct of its business was somehow made more difficult.

At this point this Court is faced with a record from which an appeals examiner made findings which are in direct conflict with the findings made by the referee. The conclusions drawn by the appeals examiner and the referee from essentially the same record are also in conflict, and the “result” reached by the commission from a review of the same record is yet different. Thus, this Court declines to speculate as to which set of findings of fact are appropriate. The cause is remanded to the commission for the preparation of its findings of fact, conclusions of law and decision on the basis of the evidence already in the record or such additional evidence as the parties may desire to tender in an additional hearing before the commission.¹

BAKES, J., concurs. DONALDSON, C.J., concurs in the result.

1 . In the event that the commission shall determine to take additional testimony, we strongly suggest that the status of the claimant be established, i.e., as solely a civilian employee of the National Guard or whether claimant was also military personnel as a member of the National Guard. The record is replete with references to disability retirement and the necessity of a physical exam for determination of fitness for “worldwide duty,” all of which suggests to the Court that the claimant may have held a dual status which in turn may bear upon a standard of conduct required of such a dual status employee.