Dey v. Edward G. Smith & Associates, Inc.

BISTLINE, Justice,

specially concurring.

I do not disagree with the Court’s opinion which directs that a hearing be held before the Commission because of the inadequate telephonic hearing conducted by the Department’s appeals examiner. Accordingly, I have joined not only the Court’s judgment but its opinion as well.

However, keeping in mind that the Commission, apparently not sharing the Court’s view as to the quality of the Department’s hearing, proceeded to consider and affirm the Department’s appeals examiner, it was and continues to be my view that the Court could do as it did just the other day in Bortz v. Pay less Drug Store, 110 Idaho 942, 719 P.2d 1202 (Sup.Ct.1986). There we accepted the facts found but, disagreeing as to the conclusion drawn (which is not binding on us), we reached our own conclusion and, on reversing, directed the entry of an award in favor of claimant.

The decision of the appeals examiner sets out the claimant’s reasons for quitting:

The claimant asserts that during the February 28, 1985, conversation, Mr. Smith became angry and grabbed her and set her down in a chair when she attempted to leave, and that in the meeting on March 1, 1985, he had a tape recorder going, and that she assumed that it was operating. She did not ask him if the recorder was operating. Mr. Smith asserts that the recorder was simply kept in his desk drawer and no recording of the meeting was made. The claimant asserts further that she overheard Mr. Smith make a telephone call to what she presumed to be an attorney saying that he wanted to fire her, but that he did not want her to be eligible for unemployment insurance benefits. She asserts that Mr. Smith had a violent temper, and that his behavior frightened her, and that he degraded and humiliated her. Other than the discussion on February 28, 1985, and March 1, 1985, the claimant provided no other examples of her allegations. Mr. Smith denies the allegations. Decision of Appeals Examiner, p. 3.

*949The conclusion of the appeals examiner, made in light of Burroughs v. Employment Security Agency, 86 Idaho 412, 387 P.2d 473 (1963), and Ellis v. Northwest Fruit & Produce, 103 Idaho 821, 654 P.2d 914 (1982), were, as I comprehend the same, that claimant failed to establish that there were compelling reasons for quitting and that her actions in quitting were not those of a “reasonably prudent person” under circumstances in which a claimant was treated in a humiliating, degrading, or harassing manner. Just as in Bortz, that conclusion is contrary to the proper conclusion to be drawn, which is that Dey acted reasonably in quitting such employment. While quitting any job may not be prudent, prudence is not any part of the Burroughs standard.