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Phelps Tointon, Inc. v. Division of Employment & Training
Citations: 824 P.2d 827; 15 Brief Times Rptr. 1715; 1991 Colo. App. LEXIS 362; 1991 WL 256396Docket: No. 91CA0864
Court: Colorado Court of Appeals; December 4, 1991; Colorado; State Appellate Court
Phelps Tointon, Inc. sought review of a final order from the Industrial Claim Appeals Panel awarding unemployment benefits to Alan R. Gardner. The case centered on the discovery of a marijuana pipe and marijuana in a company truck assigned to Gardner, who admitted ownership of the pipe but claimed the marijuana belonged to co-workers. The employer terminated Gardner for violating a company policy against drug use and possession on company property. The hearing officer ruled that the employer did not prove the necessary criteria for disqualification under relevant statutes regarding drug use affecting job performance and possession resulting in potential harm to the employer's interests. Specifically, the officer found that the employer failed to demonstrate that the marijuana was Gardner's and that mere possession of the pipe did not constitute a violation of the company's policy leading to serious harm. Consequently, the officer concluded there were no actions by Gardner that justified disqualification from benefits and awarded him unemployment compensation. The Panel upheld the hearing officer's decision, although the employer argued that the standard used by the officer was incorrect, focusing on "ownership" rather than "possession." The court agreed with the employer, stating that for the criteria under the relevant statute to be met, it must first be established whether Gardner violated the company rule regarding drug possession. The hearing officer did not adequately address the issue of possession, focusing instead on ownership, which was a misapplication of the standard necessary for determining a violation of the company’s drug policy. Ownership and possession are distinct legal concepts; ownership implies a rightful title to property, while possession refers to control or holding of property irrespective of ownership. The hearing officer incorrectly addressed the issue of the claimant's ownership of drugs instead of possession. Consequently, the findings regarding the employer's inability to prove ownership are set aside. Since the conclusions about the claimant's lack of volition and fault for termination, along with the award of benefits, were based partly on the inapplicability of 8-73-108(5)(e)(VII), those findings are also vacated. The case is remanded to the Panel for further investigation into whether the claimant violated company policy by possessing drugs on the premises and if such a violation could have caused serious harm to the employer. Should 8-73-108(5)(e)(VII) be deemed applicable, the claimant will be disqualified from benefits. If not, further inquiries regarding the claimant's volition and fault will be necessary. Other employer arguments will not be addressed. Judges Metzger and Criswell concur.