TAYLOR,
APPELLANT,
vs.
BOARD OF REVIEW ET AL.,
APPELLEES
No. 47912
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, CUYAHOGA
COUNTY
485 N.E.2d 827, 20 Ohio App. 3d 297, 20 Ohio B. Rep. 389
November 5, 1984, Decided
HEADNOTE
Unemployment compensation -- Quit for just cause -- R.C.
4141.29(D)(2)(a) -- Reasonable fear of one's personal safety is
proper reason for leaving one's employment.
SYLLABUS
1. An employee has just cause to quit his job and is entitled to
unemployment compensation where he is threatened with physical harm
by a fellow employee who has already beaten him on a prior occasion
and the complaining employee has reported that threat to his
employer who does not or is unable to take appropriate steps to
alleviate the genuine and reasonable fear of the employee who has
quit his job.
2. As used in R.C. 4141.29(D)(2)(a), "just cause" is that which,
to an ordinarily intelligent person, is a justifiable reason for
doing or not doing a particular act.
3. In accordance with R.C. 4141.29(D)(2)(a), a reasonable fear
of one's personal safety is a proper reason for leaving one's
employment, e.g., an employee cannot be expected
to remain on the job until an actual physical assault takes
place.
4. In an unemployment proceeding pursuant to R.C. Chapter 4141,
where the sworn testimony of a witness is contradicted only by
hearsay evidence, to give credibility to the hearsay statement and
to deny credibility to the claimant testifying in person is
unreasonable.
COUNSEL
Jose A. Villanueva, for appellant.
Anthony J. Celebrezze, Jr., attorney
general, and Q. Albert Corsi, for appellees.
JUDGES
PARRINO, J. CORRIGAN, C.J., and PATTON, J., concur.
AUTHOR: PARRINO
OPINION
{*298} Claimant-appellant Danny Taylor was employed by
Mediterranean Bakery, Inc.> from February 20, 1982 until
September 7, 1982 as a maintenance worker. Claimant was beaten up
by Jack Elias in July 1982, away from the bakery. Elias was not an
employee of the bakery at that time. Shortly thereafter, Elias was
employed by the bakery. He also was engaged to be married to one of
the owners of that business. Before Elias started working, he,
claimant and one of the owners, discussed the animosity that
existed between the two men. Apparently an agreement was reached
that they would attempt to get along.
On September 7, 1982 claimant was assigned to sort bread. He
started to fall behind, and asked Elias for some help. Elias did
not respond so Taylor asked one of the owners for help. At that
point, Elias stated, "F you and shut up." Several other people
helped Taylor complete the job. A few minutes later Elias
reportedly told claimant, "You better have your jack ready when you
get off work because I'll be waiting for you."
Taylor reported the threat to his supervisors who in turn talked
with Elias. Taylor was then assured that Elias would not assault
him. However, Taylor stated that he was told by one of the owners
that Elias was "going to become family" so nothing could be done
about him. Furthermore, if anything occurred between them, it would
be Taylor who would have to leave the bakery. Taylor then quit his
job.
Claimant filed for unemployment benefits claiming that he quit
with just cause. The claim was denied by the administrator on
October 6, 1982, and claimant pursued his claim through the
administrative process. At a hearing before a referee, claimant
appeared and testified; however, no witnesses testified for the
employer. The Board of Review denied further appeal on January 13,
1983, and claimant filed a timely notice of appeal to the court of
common pleas where the denial of benefits was affirmed on November
22, 1983.
Claimant is before this court on timely appeal and assigns three
errors for review:
"I. The court of common pleas erred in failing to rule that the
denial by the Board of Review of the Ohio Bureau of Employment
Services of appellant's claim for unemployment benefits was
unlawful, unreasonable, and against the manifest weight of the
evidence.
"II. The court of common pleas erred in failing to reverse the
denial of appellant's unemployment benefits since the Board of
Review of the Ohio Bureau of Employment Services failed to apply a
flexible 'just cause' standard to the facts of this case.
"III. The court of common pleas erred in failing to reverse the
denial of appellant's unemployment benefits, since appellant had
'just cause' to quit his employment pursuant to O.R.C. §
4141.29(D)(2)(a)."
As these three assignments are related in law and fact, they
will be addressed together.
Appellant contends that he quit his job with just cause because
he feared for his physical safety.
R.C. 4141.29(D)(2)(a) establishes the {*299} general
standard to obtain unemployment benefits for those who leave their
jobs. In pertinent part it provides:
"(D) * * * [N]o individual may * * * be paid benefits under the
following conditions:
"(2) For the duration of his unemployment if the administrator
finds that:
"(a) He quit his work without just cause * * *."
The question sub judice then is whether
appellant had just cause for quitting. Just cause has not been
clearly defined in case law, but one court has ruled that just
cause "is that which, to an ordinarily intelligent person, is a
justifiable reason for doing or not doing a particular act. * * *"
Peyton v. . Sun T.V. (1975), 44
Ohio App. 2d 10, 12 [73 O.O.2d 8]. We believe appellant justifiably
quit his job at Mediterranean Bakery.
We adhere to the holdings of other courts which have said that a
reasonable fear of one's personal safety is a proper reason for
leaving one's employment. Reeves v. . Bd.
of Review (C.P. 1954), 69 Ohio Laws Abs. 70;
Condo v. . Bd. of Review (N.J.
Super. Ct., App. Div., Mar. 20, 1978), Unemployment Ins. Rept.
(CCH), Paragraph 33, 779 at page 8,530; In re
Fried (N.Y. Sup. Ct., App. Div., Aug. 5, 1976),
Unemployment Ins. Rept. (CCH), Paragraph 10,530, at page 4622. An
employee cannot be expected to remain on the job until an actual
physical assault takes place.
Our review of the record indicates that Elias' threats of
physical abuse constituted just cause for appellant to quit his
job. The record clearly shows that Elias previously beat appellant,
and that Elias subsequently threatened Taylor with another physical
confrontation. While the employer assured claimant that Elias would
not bother him, Taylor was also told that the employer could do
nothing about Elias. Taylor's testimony was uncontradicted. The
only statement made by the employer was a telephone conversation
with an investigator for the Bureau of Employment Services in which
"George" said the appellant was assured that Elias would not bother
him. The evidence clearly shows that appellant had reason to fear
that Elias would harm him.
The phone call to the employer was hearsay evidence. This court
has previously said that where the sworn testimony of a witness is
contradicted only by hearsay evidence, to give credibility to the
hearsay statement and to deny credibility to the claimant
testifying in person is unreasonable. Bohannon v.
. Bd. of Review (Mar. 5, 1981), Cuyahoga App. No.
42773, unreported. See, also, Cunningham v.
. Jerry Spears Co. (1963), 119 Ohio App. 169 [26
O.O.2d 401]. Thus, any weight to be given to the employer's hearsay
is clearly outweighed by appellant's sworn testimony at the hearing
before the referee.
Accordingly, we hold that an employee has just cause to quit his
job and is entitled to unemployment compensation where he is
threatened with physical harm by a fellow employee who has already
beaten him on a prior occasion and the complaining employee has
reported that threat to his employer who does not or is unable to
take appropriate steps to alleviate the genuine and reasonable fear
of the employee who has quit his job.
For the above-stated reasons, appellant had just cause to quit
his job and is therefore entitled to unemployment compensation.
The judgment is reversed, and the cause is remanded.
Judgment reversed and cause remanded.
DISPOSITION
Judgment reversed and cause
remanded.