In Re Claim of: Louis Kolimackouski, Appellant-Appellant,

vs.

Administrator, Ohio  Bureau of Employment Services, et al.,

Appellees-Appellees

No. 89AP-1010
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
1989 Ohio App. LEXIS 4596
December 12, 1989, Decided

APPEAL from the Franklin County Common Pleas Court.

 COUNSEL

MR. JAMES M. McCORD, for appellant.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, and MR. PATRICK K. WILSON, for appellee Administrator, Ohio Bureau of Employment Services.

 JUDGES

STRAUSBAUGH, J., BRYANT and RADCLIFFE, JJ., concur.
RADCLIFFE, J., of the Ross County Court of Common Pleas, sitting by assignment in the Tenth Appellate District.
 AUTHOR: STRAUSBAUGH

 OPINION

 

 

 
STRAUSBAUGH, J.

 

This is an appeal by appellant-appellant from a judgment of the Franklin County Court of Common Pleas in which the trial court found sufficient evidence to support the determination that appellant had been discharged from employment for just cause.

 

Appellant, Louis Kolimackouski, was employed as a warehouseman for Child World, Inc., d.b.a. Children's Palace. As a condition of his employment, appellant was responsible for adhering to the terms of a negotiated union agreement as well as the employer's policy on absenteeism and tardiness. The employer's attendance policy was a system in which points were assessed against an employee for absenteeism and tardiness which provided for termination when an employee had accumulated more than nine points. As an employee committed additional offenses and was assessed more points, he would receive warnings advising him of his attendance problem. Under the terms of the employer's policy, an employee was also given the opportunity to reduce the number of accumulated points through consecutive days of work with no accumulation points.

 

During the course of appellant's employment, appellant had been absent andor tardy and had accumulated seven and one-half points on May 12, 1986. Appellant had already received two prior warnings and had been alerted to the fact that he was on the verge of discharge. On May 10, 1986, a nonworkday, appellant was involved in a nonwork-related automobile traffic accident. On the first workday morning following the accident on May 12, 1986, appellant called that day. Apparently, appellant failed to seek immediate treatment following the accident nor did he call a doctor until May 13, 1986. As it was late in the day, appellant could not schedule an appointment on that date and was not able to consult with his physician until May 15, 1986. During the period of May 12, 1986 to May 16, 1986, appellant was absent and apparently failed to clearly convey to his employer, in a timely manner consistent with the employer's policy, the reason that he was not at work and the length of time that he would be out. As a result of this failure, appellant was assessed additional points which pushed his total over the permissible level of nine and on May 16, 1986, the employer notified appellant of his termination due to excessive absenteeism pending a hearing.

 

On June 25, 1986, appellant filed an application for determination of unemployment compensation benefit rights with respect to the benefit year beginning June 22, 1986. Appellee Administrator of the Ohio Bureau of Employment Services issued a determination denying appellant's unemployment compensation benefits on the basis that appellant had been discharged for just cause. Appellant filed an application requesting a reconsideration of appellee's initial determination which ultimately appellee affirmed its initial determination. On September 2, 1986, appellant filed an appeal to the Unemployment Compensation Board of Review ("board"). In a decision issued on October 1, 1986, the board affirmed the administrator's decision on reconsideration with respect to the just cause determination. Thereafter, appellant filed an application to institute further appeal before the board on October 9, 1986, and following a review of the record, the board disallowed appellant's application to institute further appeal. Appellant then sought appeal with the Franklin County Court of Common Pleas and in a decision issued on June 5, 1989, the trial court held that there was sufficient evidence to support the board's decision that appellant had been discharged from his employment for just cause.

 

On appeal, appellant has set forth but one assignment of error for this court's review:

 

"The decision that claimant was discharged for 'just cause' in connection with his work was against the manifest weight of the evidence and unsupported by the evidence in that the decision failed to consider that Ohio statutory provisions concerning unemployment compensation be 'liberally' construed rather than construed in terms of work rules and collective bargaining agreements as may be applied to industrial relations discharge cases."

 

Appellant argues that his absenteeism was caused by a bona fide injury which rendered appellant disabled and which he had timely reported to his employer. Appellant argues that he promptly notified his employer and timely presented it with his doctor's statements supporting his disability. Appellant also contends that his employer has taken an arbitrary position in requesting that a medical or disability leave be in writing, and in fact, appellant submitted a request in writing on May 18, 1986 which his employer rejected.

 

Essentially appellant contends that the trial court erroneously concluded that appellant was not discharged from employment for "just cause" within the meaning of R.C. 4141.29. Specifically, R.C. 4141.29(D)(2)(a) states in pertinent part:

 

"(D) * * * [N]o individual may serve a waiting period or be paid benefits * * *:

 

"* * *

 

"(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 * * * [.]"

 

This court has previously recognized the inability to precisely define the term "just cause." In Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10, this court held:

 

"* * * There is, of course, not a slide-rule definition of just cause. Essentially, each case must be considered upon its particular merits. Traditionally, just cause, in the statutory sense, is that which, to an ordinary intelligent person, is a justifiable reason for doing or not doing a particular act. * * *" Id. at 12.

 

Adopting the reasoning of this court in Peyton, supra, the Supreme Court of Ohio in Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St. 3d 15, held:

 

"The determination of what constitutes just cause must be analyzed in conjunction with the legislative purpose underlying the Unemployment Compensation Act. Essentially, the Act's purpose is 'to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modern day.' * * * Likewise, '[t]he act was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own.' * * *" (Citations omitted.) Id. at 17.

 

In reviewing the board's determination that appellant was discharged with "just cause," this court is cognizant of the Supreme Court's further admonition in Irvine, supra, in which the court stated:

 

"The determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case. Determination of purely factual questions is primarily within the province of the referee and the board. Upon appeal, a court of law may reverse such decisions only if they are unlawful, unreasonable, or against the manifest weight of the evidence. * * * Like other courts serving in an appellate capacity, we sit on a court with limited power of review. Such courts are not permitted to make factual findings or to determine the credibility of witnesses. * * * The duty or authority of the courts is to determine whether the decision of the board is supported by the evidence in the record. * * * The fact that reasonable minds might reach different conclusions is not a basis for the reversal of the board's decision. * * * Moreover, '[o]ur statutes on appeals from such decisions [of the board] are so designed and worded as to leave undisturbed the board's decisions on close questions. Where the board might reasonably decide either way, the courts have no authority to upset the board's decision.' * * *" (Citations omitted.) Id. at 17-18.

 

Upon review of the record in the present case, we find no error in the trial court's decision finding that there was sufficient evidence to support the board's decision that appellant had been discharged from his employment for just cause. Appellant was fully aware of his employer's attendance policy in which points were assessed against an employee for absenteeism and tardiness. The accumulation of more than nine points resulted in automatic termination which was apparently administered in a strict and impartial manner. During the course of his employment, appellant had been repeatedly absent and tardy, had received two prior warnings regarding problems with his attendance, and had been alerted that he was on the verge of discharge.

 

The last event which pushed appellant's total points over the permissible level of nine resulted from an automobile accident on a non-workday. While appellant claimed that the injuries arising out of the accident were very severe, he did not seek treatment in an emergency room nor contact his physician until approximately three days later and did not see a physician until five days following the accident. There was also testimony that when appellant contacted his foreman and reported off work for the first workday following the accident, he failed to elaborate on any of the details of the accident, nor did he state how severely he was injured or for what period he intended to be off work. When appellant failed to report off work for Tuesday, Wednesday and Thursday, and failed to timely produce a written excuse, his employer informed him that his employment was terminated effective March 16, 1986, pending a hearing. We note that there exist two doctors' reports in the record stating that at no time that appellant was absent from work was he unable to work. It is clear that an employee may be discharged for just cause based upon absence or tardiness. See Kiikka v. Ohio Bur. of Emp. Services (1985), 21 Ohio App. 3d 168, 169. We find no error in the board's decision requiring appellant to have made a greater effort to notify his employer and seek prompt medical attention nor in its decision that the tendered medical excuse was untimely.

 

Furthermore, we find that the negotiated policy regarding attendance to have been fair and fairly applied since appellant received notice of the policy, the policy was capable of being understood by the average person and there existed a rational basis for that policy. See Shaffer v. American Sickle Cell Anemia Assn. (June 12, 1986), Cuyahoga App. No. 50127, unreported. There exists no indication in the record demonstrating that appellant was treated differently from other employees nor that the employer had at anytime discriminatorily applied the policy.

 

Based on the foregoing, appellant's assignment of error is not well-taken and is overruled. The judgment of the trial court is hereby affirmed.

 DISPOSITION
 

Judgment affirmed.