dissenting.
Respectfully, I dissent from the majority opinion because I do not believe that Hicks has shown prejudice from the Commission’s refusal to issue a subpoena as requested. As an initial matter, I do not condone the Commission’s handling of the matter. Hicks made two requests for a subpoena prior to the hearing before the Referee, but the Commission did not advise him that it was denying the requests until the day of the hearing. The Commission should have advised Hicks of its decision before the hearing.
Nevertheless, I disagree with the majority that the Commission’s refusal to issue the subpoena violated Hicks’ due process rights. Hicks concedes that he was required to maintain his CDL license and that his failure to do so violated a condition of his employment. However, he argues that the records would show that he had sought continued employment through CBS in any capacity not requiring a CDL license. But even if this is the case, Hicks’ failure to obtain the waiver necessary to maintain his CDL license did not fulfill his responsibility of meeting the condition precedent required for continuation of his employment as a driver. Since the records requested would not alter this fact, Hicks was not unfairly prejudiced from the denial of his requests for a subpoena or a continuance. Under the circumstances, there was substantial evidence to support the Commission’s finding that Hicks voluntarily left his employment without good cause. Consequently, the Jefferson Circuit Court properly affirmed the Commission’s decision.