dissenting:
I am unable to join in the majority opinion and respectfully dissent.
I
I agree with the contention of Garrett that the notice served upon them did not properly advise that Mager’s letter or “request for review” would be considered by the Commission as evidence. Garrett did not receive copies of other correspondence between Mager and the Commission as correctly pointed out by the majority. I consider this to be a fatal procedural defect. The vital letter, in my opinion, was that from Mager to the Commission dated September 18, 1977. In this letter Mager stated, among other things, “. . . if I could use the letter . . sent the *472Commission stating the reasons why I should be granted a hearing, as new evidence to be considered I would like my case to be considered,” and, “If the Commission only knows the facts presented before the Appeals Examiner that are now in the transcript I will only lose the case again.” (Emphasis added.)
Iagree with Garrett’s contention that the notice by the Commission could not fairly be interpreted to mean that the appeal grounds contained in the letter would be treated as facts, without affording the right of cross-examination or of Garrett to present other evidence. I cannot and do not agree with the conclusion of the majority that unlike the notice in White v. Idaho Forest Industries, 98 Idaho 784, 572 P.2d 887 (1977), the notice here sufficiently complied with I.C. § 72-713 and was fair notice of how the Commission intended to proceed. Nor do I agree with the conclusion that Garrett’s failure to respond constituted a waiver of its hearing rights. I believe the rule to be that there can be no waiver without the intentional relinquishment of a known right after knowledge of the facts. Had Garrett been furnished a copy of the September 18th letter, it would have immediately perceived that claimant was seeking to inject a new element (or elements) into the case and did not wish to rely on the testimony formerly adduced before the appeals examiner. With this information available, if Garrett then failed to object or failed to ask leave to submit further evidence or failed to ask that claimant submit to cross examination on the new issues, a waiver may well have resulted. In my opinion this case falls within the condemnation expressed by Justice Bistline in White to the effect that I.C. § 72-1368 is not a carte blanche allowing the unbridled right to present a substantially new case, absent some showing as to why the evidence had been unavailable earlier.
II
I recognize that the review by this Court of unemployment compensation cases is limited to reviewing only questions of law. However, it is also required that findings of the Commission be supported by substantial and competent evidence in the record. The majority concedes that the letter submitted by Mager and used by the Commission consisted of unsworn statements, hearsay and conclusions, but then maintains and holds that Garrett waived objections to the competency of such evidence by failing to object thereto. I agree that failure to object to the admission of testimony or other evidence may constitute a waiver, but if, and only if, a fair or reasonable opportunity is afforded an objection in the first place.
I reiterate my opinion relating to waiver as stated above.
Ill
The sworn testimony of claimant contained in the record which constitutes Mag-er’s reasons for leaving Garrett shows that his suggestions made to the company were ignored, that he had a basic disagreement with the way Garrett was operating; and that a vice-president’s idea of running the company was different from his. Claimant Mager testified that “probably, more than anything, was my discussion with Mr. Alsbury, that made me start to really consider leaving the company.” This discussion took place about one and one-half weeks before claimant left Garrett. The record discloses that Mager was in no danger of discharge, and he concedes he “was fairly treated.”
All of these factors were considered by the appeals examiner who, in my opinion, correctly concluded that claimant’s reasons for leaving were purely personal and subjective in nature and “do not constitute good cause.”
The Commission, on the other hand, in treating claimant’s “request for review” as additional or new evidence “found” some different factors which it concluded did constitute “good cause.” However, these were factors never raised or considered below and which effectively permitted claimant to “present substantially a new case.” Notwithstanding the additional or “new evidence,” the conclusion still remains that claimant’s reasons for leaving the company *473were purely personal and subjective and were unique to this employee. Such reasons do not constitute “good cause.” I.C. § 72~1366(e);1 Flynn v. Amfac Foods, Inc., 97 Idaho 768, 554 P.2d 946 (1976); Clark v. Bogus Basin Recreational Association, 91 Idaho 916, 435 P.2d 256 (1967). Claimant was, after all, originally hired as a foreman and thus, being in a supervisory capacity, would be expected to have conflicting demands made upon him, to receive night calls, and to have demands made for explanation as to why work was not completed.
In summary, the employer was not accorded due process in connection with the Commission “notice.” Even assuming Mag-er’s letter was correctly considered as evidence, I conclude that the findings of the Commission are not supported by the evidence in the record. I would reverse and reinstate the decision of the appeals examiner.
SHEPARD, J., concurs.. “72-1366. Personal Eligibility Conditions.— The personal eligibility conditions of a benefit claimant are that—
“(e) His unemployment is not due to the fact that he left his employment voluntarily without good cause, or that he was discharged for misconduct in connection with his employment.