BATAVIA NURSING AND CONVALESCENT INN Appellee

vs.

DONNA E. KIDD, et al. Appellant

No. CA85-12-113
COURT OF APPEALS, TWELFTH APPELLATE DISTRICT, CLERMONT COUNTY, OHIO
Slip Opinion
June 23, 1986, Decided

COUNSEL

 

Denlinger, Rosenthal & Greenberg, Gary L. Greenberg and James R. Stokes, 2140 First National Bank Center, 425 Walnut Street, Cincinnati, Ohio 45202, for appellee, Batavia Nursing and Convalescent Inn.
Gary R. Greer, 55 West Main Street, Batavia, Ohio 43103, for appellant, Donna E. Kidd.
Anthony J. Celebrezze, Jr., Attorney General, Patrick A. Devine, Assistant Attorney General, and Lawrence J. Hackett, Assistant Attorney General, 145 South Front Street, Columbus, Ohio 43215, for appellant, Ohio Bureau of Employment Services.

 JUDGES

 

KOEHLER, P.J., JONES and HENDRICKSON, JJ., concur.

 OPINION

 

 

 
PER CURIAM

 

This cause came on to be heard upon the appeal, transcript of the docket, journal entries and original papers from the Court of Common Pleas of Clermont County, Ohio, transcript of proceedings, briefs and oral argument of counsel for the Ohio Bureau of Employment Services.

 

Now, therefore, the assignment of error having been fully considered is passed upon in conformity with App. R. 12(A) as follows:

 

Appellant, Donna E. Kidd, was employed by appellee, Batavia Nursing and Convalescent Inn, from April 6, 1981 to February 11, 1984. From February 12, 1984 to March 18, 1984, appellant was on a medical leave of absence. She reported for work on March 19, 1984, but was informed that no work was available for her because a replacement had been hired. She was also informed that she could expect to be recalled to her job in several weeks. On March 20, 1984, she filed an application for determination of benefit rights with appellee, Ohio Bureau of Employment Services (OBES). Two days later, she returned to her workplace to submit a doctor's bill for reimbursement. However, appellee's administrator believed that appellant had thereby deliberately sought money not due her, and mailed a letter of discharge to her the following day. On March 26, 1984, appellee informed the local OBES office that claimant had been terminated from her job for supplying false information to obtain money.

 

OBES issued an initial determination that claimant was separated from employment due to lack of work, and allowed the benefits claim for the week ending March 24. Subsequently, OBES allowed appellant's claim for the week ending March 31. Appellee appealed both determinations through three further levels of administrative review without success.

 

Appellee appealed the final decisions of the Unemployment Compensation Board of Review to the Court of Common Pleas of Clermont County, which granted its motion to consolidate the two actions. That court found that the board of review's decision disallowing appellee's appeal was unlawful and unreasonable and remanded the case to the board of review to determine whether appellant was discharged for just cause and thus disqualified from receipt of further benefits.

 

Appellants timely bring this appeal, naming as their sole assignment of error:

 

"The Common Pleas Court erred in holding that the decision of the Board of Review with respect to case numbers 84-CV-0769 and 85-CV-0283 were unlawful and unreasonable and in reversing and remanding the consolidated case to the board to determine whether claimant was discharged for just cause by her employer."

 

Appellants argue that that the lower court erred in addressing the issue of whether an employer-employee relationship continues during a lay-off period and whether that relationship can therefore be severed during that lay-off period, rather than addressing the issue of whether the severance of the employer-employee relationship during a lay-off period constitutes a "separation from work" under the Ohio Unemployment Compensation Act. Appellee argues that a claimant for unemployment benefits may be discharged for cause while on layoff subject to recall and thereby become ineligible for further benefits. We agree.

 

R.C. 4141.28(D)(1) provides in part:

 

"(D)(1) The administrator or his deputy shall examine the first claim for benefits filed in any benefit year, and any additional claim, and on the basis of any facts found by him shall determine whether division (D) of section 4141.29 of the Revised Code is applicable to the claimant's most recent separation and, to the extent necessary, prior separations from work, and whether such claim shall be allowed or disallowed." (Emphasis added.)

 

R.C. 4141.28(D)(2) provides in part:

 

"(2) The administrator or his deputy shall also examine each continued claim for benefits filed, and on the basis of any facts found by him shall determine whether such claim shall be allowed." (Emphasis added.)

 

R.C. 4141.29(D) provides in relevant part:

 

"(D) Notwithstanding division (A) of this section, no individual may serve a waiting period or be paid benefits under the following conditions:

 

"(1) For any week with respect to which the administrator finds that:

 

"(b) He has been given a disciplinary layoff for misconduct in connection with his work.

 

"(2) For the duration of his unemployment if the administrator finds that:

 

"(a) He quit his work without just cause or has been discharged for just cause in connection with his work * * *[.]

 

"(f) He became unemployed because of dishonesty in connection with his most recent or any base period work. * * *"

 

The focus of our determination is the period after claimant was "discharged," since all parties seem to agree that she is entitled to benefits until that date.

 

Appellants argue initially that the claim for the week ending March 31 is a "continued claim" rather than a "first claim" or "additional claim" and that therefore R.C. 4141.28(D)(2) rather than R.C. 4141.28(D)(1) applies. We agree that the claim for the week ending March 24 rather than that for the week ending March 31 was the "first claim." R.C. 4101.01 defines the remaining terms as follows:

 

"(F) 'Additional claim' means the first claim for benefits filed following any separation from employment during a benefit year;

 

"'[C]ontinued claim' means any claim other than the first claim for benefits and other than an additional claim."

 

An "additional claim" is the first claim following "separation from employment" during a benefit year. "Employment" is defined in R.C. 4141.01(B)(1) as "service employed for wages * * *." "Benefit year" is defined in R.C. 4141.01(R) as "[t]he fifty-two week period beginning with the first day of that week with respect to which he first files a valid application for determination of benefit rights * * *[.]" Thus, the claim for the week ending March 31 is not an "additional claim," for it was not the first claim filed following service performed for wages. Nor did it follow separation during a benefit year. The separation occurred before claimant's benefit year. Thus, we agree with appellants that an "additional claim" occurs when one files a "first claim," subsequently regains employment and thereafter again becomes unemployed. Therefore, the claim for the week ending March 31 was a "continued claim."

 

Appellants argue that an examination of R.C. 4141.29(D)(2)(a) and (f) is not permissible in the case of a "continued claim." We disagree with this narrow reading of the statute. First, it would lead to an absurd result. Laid-off claimants would be entitled to continuous benefits even though not permitted to return to work because of dishonesty or other misconduct discovered during the layoff. Second, R.C. 4141.29(D)(2)(f) applies where an employee "became unemployed" because of dishonesty. An employee who became unemployed due to a layoff can "become unemployed" as a result of being discharged for dishonesty if, but for the discharge, the employee would have been recalled, as is the case here. Third, the result urged by appellant would contravene the obvious intent of the legislature that employees discharged for cause not be awarded benefits. Further, R.C. 4141.28(D)(2) requires that each continued claim be examined for any fact which determines whether the claim shall be allowed. Certainly, employee dishonesty toward his or her employer is a fact relevant to the determination.

 

Most importantly, the Ohio Supreme Court has recognized that the reason for a claimant's separation from his job can be changed after that separation where an action after the separation terminates the employee-employer relationship. Baugh v. United Telephone Company (1978), 54 Ohio St. 2d 419. In Baugh, the court held that claimants who initially left their jobs due to a labor dispute, and who therefore were disqualified for benefits under R.C. 4141.29(D)(1)(a), were eligible to receive benefits after their employer terminated the employer-employee relationship by hiring replacements. The court found that since the employer's action of replacing the workers and not the labor dispute became the proximate cause of the claimants' unemployment at the moment they were replaced, the statutory disqualification terminated. The reasoning in Baugh also applies here, for when claimant was discharged on March 24, her alleged misconduct became the proximate cause of her unemployment.

 

Under the Ohio Unemployment Compensation Act, an employer-employee relationship continues while an employee is laid off subject to recall. R.C. 4141.01(R) states that "an individual is unemployed if he was separated from his most recent work for any reason which terminated his employer-employee relationship or was laid off indefinitely or for a period of seven or more days." (Emphasis added.) By referring to termination of the employer-employee relationship and layoff alternatively, the statute clearly indicates that a layoff does not terminate the employer-employee relationship. Therefore, the employee can be "separated" from employment while laid off and, as discussed above, the reason for the separation can change.

 

For the reasons stated above, appellant's assignment of error is hereby overruled.

 

The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed.

 

It is further ordered that a mandate be sent to the Court of Common Pleas of Clermont County, Ohio, for execution upon this judgment.

 

Costs to be taxed in compliance with App. R. 24. And the court being of the opinion that there were reasonable grounds for this appeal, allows no penalty.

 

It is further ordered that a certified copy of this Memorandum Decision and Judgment Entry shall constitute the mandate pursuant to App. R. 27.

 

To all of which the appellants, by their counsel, except.

 

KOEHLER, P.J., JONES and HENDRICKSON, JJ., concur.

 DISPOSITION
 

The assignment of error properly before this court having been ruled upon as heretofore set forth, it is the order of this court that the judgment or final order herein appealed from be, and the same hereby is, affirmed.
 

It is further ordered that a mandate be sent to the Court of Common Pleas of Clermont County, Ohio , for execution upon this judgment.
 

Costs to be taxed in compliance with App. R. 24. And the court being of the opinion that there were reasonable grounds for this appeal, allows no penalty.
 

It is further ordered that a certified copy of this Memorandum Decision and Judgment Entry shall constitute the mandate pursuant to App. R. 27.
 

To all of which the appellants, by their counsel, except.