Distribution II Transmanagement Corp., Appellant-Appellant,

vs.

James Howell >et al., Appellees-Appellees

No. 86AP-507
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
1988 Ohio App. LEXIS 5348
December 30, 1988, Decided

APPEAL from the Franklin County Common Pleas Court.

 COUNSEL

 

BRICKER & ECKLER, MR. CHARLES H. WALKER and MR. CHARLES D. SMITH, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, and MR. PATRICK A. DEVINE, for appellee Administrator, Ohio Bureau of Employment Services.
MR. JAMES HOWELL, pro se.

 JUDGES

 

NICHOLS,* J. WHITESIDE, P.J., and McCORMAC, J., concur.
 AUTHOR: NICHOLS

 OPINION

 

 

 
NICHOLS, J.

 

This matter came on for consideration before us on the appeal of appellant, Distribution II Transmanagement Corporation, from a judgment of the Franklin County Court of Common Pleas that affirmed the decision of the Ohio Bureau of Employment Services' Board of Review, that appellee, James Howell, separated from employment with appellant for lack of work.

 

From the record it appears that appellee worked for appellant in a full-time capacity as a warehouseman from August 1983 until May 9, 1985, when he was laid-off at the end of the workday for lack of work. Subsequently, appellant determined that on May 8, 1985, appellee directed a work crew to improperly load containers that were to be shipped by railroad to a customer, the effect of which was to cause a substantial expense to appellant. Appellant then notified appellee on May 13, 1985 that his employment had terminated on May 9, 1985 for insubordination and job neglect.

 

In response to appellee's application for determination of benefits, appellant's personnel manager, Mary Brewer, on May 14, 1985, stated that he separated due to lack of work. By letter of May 15, 1985, she informed the bureau that "Mr. Howell was terminated for 'Neglect of Duty' and 'Gross Insubordination.'" On June 3, 1985, however, the administrator of the Bureau of Employment Services found that "[n]o disqualification for benefits is imposed," and allowed Howell's claim. Appellant appealed the decision and requested a fact-finding hearing. Notice of a fact-finding interview was mailed to all participants on June 11, 1985, scheduling the matter for June 17, 1985, at 10:00 a.m. The matter came on for reconsideration as scheduled; appellant failed to appear at the hearing because it did not receive the notice until June 18, 1985.

 

The administrator's decision of June 20, 1985, affirmed the initial determination of June 3, 1985. Appellant appealed the decision to the Unemployment Compensation Board of Review and the matter was assigned for hearing before the referee on July 16, 1985. The referee limited testimony to the reasons for the layoff of May 9, 1985, and he ruled that matters stated in the letter of May 13, 1985 were not relevant, In his decision of July 24, 1985, the referee found that appellee and others were laid off for lack of work. He further found that:

 

"* * * Within the meaning of the Ohio Unemployment Compensation Law, once an individual has been terminated, there can be no other separation until the individual returns to work * * *. In conclusion, the Referee will hold that none of the disqualifications called for * * * apply to the reason for claimant's separation on May 9, 1985, and therefore no disqualification for benefit rights is appropriate by reason of his separation at that time which the Referee concluded above was due to lack of work."

 

Upon further appeal, the board of review found appellant's application to institute further appeal was disallowed. Said decision was timely appealed to the Franklin County Court of Common Pleas. After review of the entire record, the court affirmed the administrative decision and found "* * * the decision of the Board of Review is supported by reliable, substantive and probative evidence. * * *"

 

In support of its appeal, appellant raises the following assignments of error:

 

"1. The Common Pleas Court erred by failing to conclude that the decision of the Unemployment Compensation Board of Review was both unlawful and unreasonable in light of the fact that Distribution II Transmanagement Corp. was denied a full and fair hearing before the referee for the Board of Review on its appeal from the administrator's decision on reconsideration, in violation of Chapter 4141 of the Ohio Revised Code and Distribution II Transmanagement Corp.'s constitutional right to due process.

 

"2. The Common Pleas Court committed prejudicial error by failing to apply the proper standard of review in rendering its decision on Distribution II Transmanagement Corp.'s appeal as required by section 4141.28(C) of the Ohio Revised Code.

 

"3. The Court of Common Pleas erred in affirming the referee's finding that Mr. Howell had been terminated from his employment for lack of work on May 9, 1985.

 

"4. The Common Pleas Court erred in concluding that because Mr. Howell had been laid off on May 9, 1985, his status could not be changed by notice of termination at a later date."

 

The gravamen of appellant's complaint is that it was denied a full and fair hearing at all stages of the appellate process because it was not permitted to present evidence that appellee was terminated for just cause.

 

R.C. 4141.28(J) provides, inter alia:

 

"When an appeal from a decision on reconsideration of the administrator or deputy is taken, all interested parties shall be notified and the board or referee shall, after affording such parties reasonable opportunity for a fair hearing, affirm, modify, or reverse the findings of act and the decision of the administrator or deputy in the manner which appears just and proper. In the conduct of such hearing or any other hearing on appeal to the board which is provided in this section, the board and the referees shall not be bound by common law or statutory rules of evidence or by technical or formal rules of procedure. * * *"

 

We recognize that R.C. 4141.28(J) grants a referee broad discretion in accepting or rejecting evidence that is offered at a hearing. However, exclusion of relevant evidence at a hearing for reconsideration of the determination of unemployment benefits constitutes a denial of a reasonable opportunity to be heard. Nordonia Hills Bd. of Edn. v. Unemp. Comp. Bd. of Review (1983), 11 Ohio App. 3d 189. Relevant evidence is that which tends to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. Evid. R. 401. The issue then becomes whether the excluded evidence concerning termination for just cause was relevant within the context of the facts of this case.

 

Although appellant did not receive notice of the fact-finding hearing of June 17, 1985, until one day after it was completed, its failure to appear did not constitute a deprivation of a reasonable opportunity to be heard. R.C. 4141.28(B)(1)(b) provides, inter alia, that notices of a fact-finding hearing:

 

"* * * [S]hall inform such employer of his right, upon request, to be present at a fact-finding interview conducted prior to the making of any determination under such division upon receipt of any request, the claimant and the employer making the request shall have at least three days prior notice of the time and place of the fact-finding interview. In the conduct of the interview, the administrator is not bound by rules of evidence or of procedure for the conduct of hearings. * * *"

 

The notice of the fact-finding hearing was timely sent to appellant; its failure to receive the notice prior to the scheduled hearing does not vitiate the decision entered on the evidence adduced.

 

Moreover, at the hearing held before the Unemployment Compensation Board of Review, the referee correctly found the proffered evidence of appellee's alleged insubordination and job neglect inadmissible because it was not relevant, The trial court found "* * * that the [appellee] could not be later fired from a job he did not have." Thus, the trial court held that the referee correctly found that appellee could not be terminated for cause from a job which had been abolished and which resulted in separation for lack of work. At the instant he separated on May 9, 1985, he was no longer employed. Therefore, he could not be later discharged for cause from a job he no longer held and which no longer existed, and evidence in support of such cause was irrelevant.

 

We conclude that appellant was granted a full and fair hearing before the referee who considered relevant evidence regarding the reason for appellee's separation on May 9, 1985. The reason was simply lack of work; his status became frozen on that date, and subsequent revelations, if proven, would not alter it. Appellant's first, third and fourth assignments of error are overruled.

 

R.C. 4141.28(O) provides, inter alia:

 

"* * * If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. * * *"

 

In the case sub judice, it is apparent that the trial court considered whether the decision of the board of review was unlawful and unreasonable when it stated in its decision that appellant "[a]sserts various procedural errors but does not refute the basic finding that on May 9, 1985, Mr. Howell was laid off. * * *" Nothing appellant claims it was denied in the appellate process prejudiced its rights or adversely affected the outcome. The evidence it sought to present to the referee was not relevant. The fact-finding hearing of June 17, 1985, timely notice of which appellant denies, was not adversarial to such a degree that appellant can claim an unreasonable or unlawful deprivation.

 

An appeal to the court of common pleas pursuant to R.C. 4141.28(O) based on factual grounds is limited to determining whether the board's decision is supported by evidence in the record. Therefore, a decision supported by some competent, credible evidence going to the issues in dispute will not be reversed as being against the manifest weight of the evidence. C.E. Morris Co. v. Foley Construction Co. (1978), 54 Ohio St.2d 279; Angelkovski v. Buckeye Potato Chips Co. (1983), 11 Ohio App. 3d 159. The trial court specifically found the board's decision to be supported by reliable, substantive and probative evidence. Such statement reflects that it applied the proper standard of review although may not have used the proper language in its decision. Ohio Presbyterian Homes v. Carol L. Meyers (February 28, 1984), Franklin App. No. 83AP-807, unreported (Memorandum Decision).

 

Lastly, our review of proceedings below is limited to a determination of whether the trial court abused its discretion. "* * * In this context, the meaning of the term 'abuse of discretion' connotes more than an error of judgment; it implies a decision without a reasonable basis, one which is clearly wrong." Angelkovski, supra, at 161-162. We find that the trial court reasonably determined that the board's decision was not against the manifest weight of the evidence. Appellant's second assignment of error is overruled.

 

For the foregoing reasons, appellant's assignments of error are overruled and the judgment of the Franklin County Common Pleas Court is affirmed.

 DISPOSITION
 

Judgment affirmed.
 

JUDGES FOOTNOTES

 

 

 
* NICHOLS, J., of the Madison County Common Pleas Court, sitting by assignment in the Tenth Appellate District.