ARTHUR H. HEALEY, J.
The plaintiff, Sandra Finkenstein, left her job as a dental assistant and receptionist on Monday, July 30, 1979, after a dispute with her employer concerning absenteeism and the procedure for reporting absences. Thereafter, the plaintiff applied for unemployment compensation benefits under General Statutes § 31-222 et seq. After an examination by a claims examiner designated by the administrator of the Unemployment Compensation Act (administrator),
Subsequently, when the hearing was reconvened, the referee received testimony from Fitzgerald who stated that she overheard the conversation in question. She corroborated the employer's testimony regarding what she had said to the plaintiff. Fitzgerald testified that the employer told the plaintiff that she was giving her until Friday to "shape up." This co-worker also stated that she "really didn't know what to think" while hearing the conversation. She further testified that "the way that [the plaintiff] acted, I thought she was fired," but she also stated that her employer "liked [the plaintiff's] work and she'd given her so many ... chances before [because the plaintiff] has been sick an awfully [sic] lot and she [the employer] liked [the plaintiff] a lot .... I knew she was going to keep [the plaintiff] on."
The referee issued a written decision with findings of fact in which he concluded that the plaintiff left her work voluntarily, thus rendering her ineligible for unemployment compensation benefits. The plaintiff appealed this decision to the board of review (board) which, after reviewing the record before it, affirmed the referee's decision, adopting his findings of fact and decision as its own. The plaintiff then filed an appeal
On this appeal, the plaintiff claims that the Superior Court erred: (1) in permitting the administrator to oppose the plaintiff's appeal notwithstanding his original decision granting unemployment compensation benefits to the plaintiff; and (2) in affirming the board's decision to deny benefits where there was no finding as to whether the plaintiff had reasonably believed that she had been discharged by her employer.
In support of her first claim, the plaintiff asserts that permitting the administrator to oppose her appeal after he initially found her to be entitled to unemployment benefits is foreclosed by the statutory scheme promulgated by the legislature. This claim does not withstand analysis.
The administrator is the labor commissioner. General Statutes § 31-222 (c). He is charged with the initial responsibility of determining whether claimants are entitled to unemployment benefits. General Statutes § 31-241. Upon the filing of a claim, the administrator or a representative (examiner) designated by him must examine the claim and "on the basis of the facts found by him," determine whether the claim is valid. Id. Such determinations are made after an evaluation of "evidence presented in person or in writing at a hearing called for such purpose." Id. This initial determination becomes final unless the claimant or the employer files an appeal within twenty-one days after notification of the determination is mailed. Id. Appeals are taken to the employment security appeals division which consists of a referee section and the board of review. General Statutes §§ 31-237a, 31-237b. The appeals division is "separate and apart from the administrator"; Robinson v. Unemployment Security Board of Review, 181 Conn. 1, 2, 434 A.2d 293 (1980); and by statute the administrator is "deemed to be a party to any proceeding... before a referee, the board or any reviewing court." General Statutes § 31-249c.
The first stage of claims review lies with a referee who hears the claim de novo. The referee's function in conducting this hearing is to "make inquiry in such manner, through oral testimony or written and printed records, as is best calculated to ascertain the substantial
Important to our disposition of this issue is that on an appeal from an initial determination made by an examiner, a referee hears the claim de novo. Thus, the hearing before the referee is not a continuation of the proceeding before the examiner. The administrator, through his examiner, does not continue to act as an adjudicator, but is deemed a party to all appellate proceedings, having the correlative right to appeal the decision rendered pursuant to such proceedings. Inherent in the nature of de novo proceedings is that new or previously undiscovered facts or evidence may arise. Such information, had it been known at the stage of the proceedings before the examiner, certainly might have altered that determination regarding eligibility. It, therefore, follows that the information obtained from a de novo hearing might fairly alter the administrator's position concerning a claimant's eligibility. As a party to the proceedings with the right to appeal, the administrator must be able to oppose the initial determination based upon the facts revealed subsequent thereto. To do otherwise would leave the administrator bound to advocate a position which, based upon the de novo hearing, he now recognizes as erroneous and not in accordance with the eligibility provisions established by the legislature.
The plaintiff maintains, however, that regardless of the findings made from the de novo hearing, the continuous
A limitation on the administrator's power to oppose this plaintiff's appeal does not exist in § 31-243. In essence, that section provides for continuous administrative jurisdiction over benefits and a stay of proceedings pending an appeal, and delineates certain conditions under which the administrator, as an adjudicator, may review an award of benefits and issue a
The plaintiff also maintains that, even if the administrator may oppose her appeal, the basic principles of due process of law prohibit him from so doing without providing claimants with notice, a hearing, and the right to appeal. The plaintiff relies on Shea v. State Employees' Retirement Commission, 170 Conn. 610, 368 A.2d 159 (1976), as authority for this claim. Such reliance is misplaced.
In Shea, where we considered an agency's revocation of the granting of a claimant's application for disability retirement benefits, we held that, in the absence of notice or opportunity for a hearing, the claimant had been denied procedural due process. Id., 617. The plaintiff asks us to extend this rule to the administrator's actions subsequent to the de novo hearing before the referee. While the legislature may eventually deem it appropriate to provide claimants with such rights, we do not believe that the plaintiff in this case was denied due process of law as claimed. "[D]ue process requires that the procedure involved must be appropriate to the nature of the case." Id., 616-17, quoting Hart Twin Volvo Corporation v. Commissioner of Motor Vehicles,
The plaintiff's second claim is that the Superior Court erred in affirming the board's decision to deny benefits where there was no finding on whether the plaintiff had reasonably believed that she had been fired by her employer. Because we find that this specific issue was not properly raised before the board of review, we will not address its merits.
We have stated previously that the Superior Court does not retry the facts or hear evidence in appeals under our unemployment compensation legislation. Rather, it acts as an appellate court to review the record certified and filed by the board of review. Burnham v. Administrator, 184 Conn. 317, 321, 439 A.2d 1008 (1981). The court "is bound by the findings of subordinate facts and reasonable factual conclusions
In the plaintiff's appeal to the board of review, it reviewed the record upon which the referee rendered his decision and findings, as well as the brief which had been filed by the plaintiff's counsel. The brief indicated to the board the plaintiff's position that: (1) the referee's finding that she had left her job voluntarily was "unsupported by the record and thus erroneous"; (2) an employee who leaves a job reasonably believing that she has been fired cannot be charged with a voluntary quit; (3) the evidence indicated that the plaintiff reasonably believed she had been fired; and (4) since the referee's finding regarding the plaintiff's voluntary quit was erroneous, the presumption of nondisqualification had not been rebutted. We cannot find, and the plaintiff has not pointed to, anything in the record that can
We have recently expressed our disinclination to address matters not properly raised in the administrative forum and we reaffirm the principle that we will not set aside an agency's determination upon a ground not theretofore fairly presented for its consideration because such action on our part would deprive the agency of an opportunity to consider the matter, make its ruling, and set forth the reasons for its action. Burnham v. Administrator, supra, 323, citing Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155, 67 S.Ct. 245, 91 L. Ed. 136 (1946). We therefore will not address the merits of the plaintiff's second claim.
There is no error.
In this opinion PETERS, PARSKEY and SPONZO, Js., concurred.
SHEA, J. (concurring). I agree with part I of the opinion.
I agree with the result reached in Part II, but I do not understand why the claims in the brief that: "(1) the referee's finding that she had left her job voluntarily was `unsupported by the record and thus erroneous'"; and "(2) an employee who leaves a job reasonably believing that she has been fired cannot be charged with a voluntary quit" are not sufficient to raise the claim of the absence of a finding as to whether the plaintiff reasonably believed she had been fired. Furthermore, we have not previously insisted that every claim of law to be raised in an appeal from an administrative agency first be presented to that agency. Such an additional procedural roadblock to the fair adjudication of issues on their merits is not to be found in the rules of practice;
I agree, however, that we should not review the claim on the merits, because the plaintiff never sought a specific finding upon the issue which she now claims it was necessary to resolve. Her motion to correct did not include any request for a finding upon the reasonableness of her belief that she had been fired. The motion did seek (1) a finding that the witness Fitzgerald "thought that the claimant had been fired and was certain that the claimant believed she had been fired"; and (2) a finding that the employer "failed to make her intentions clear to the claimant." It did not, however, request the referee to determine the issue of the reasonableness of the plaintiff's belief. Even if we were to assume that the motion impliedly made such a request, its denial would indicate that the referee found against her on the issue. The denial of the motion to correct does not appear to have been pursued in this appeal. See Practice Book § 518A.