Tzangas, Plakas & Mannos,
Attorneys, Appellee,
vs.
Administrator, Ohio
Bureau of Employment Services, Appellant
No. 94-564
SUPREME COURT OF OHIO
653 N.E.2d 1207, 73 Ohio St. 3d 694
September 13, 1995, Decided
Certified by the Court of Appeals for
Stark County, No. CA-9371.
HEADNOTE
Unemployment compensation -- Appellate court may reverse
the Unemployment Compensation Board of Review's "just cause"
determination, when -- Fault on behalf of employee is an essential
component of a just cause termination -- Unsuitability for a
position constitutes fault sufficient to support a just
cause termination -- Employer may properly
find an employee unsuitable for the required work, and thus to be
at fault, when.
SYLLABUS
1. An appellate court may reverse the Unemployment Compensation
Board of Review's "just cause" determination only if it is
unlawful, unreasonable or against the manifest weight of the
evidence.
2. Fault on behalf of the employee is an essential component of
a just cause termination.
3. Unsuitability for a position constitutes fault sufficient to
support a just cause termination.
4. An employer may properly find an employee unsuitable for the
required work, and thus to be at fault, when: (1) the employee does
not perform the required work, (2) the employer made known its
expectations of the employee at the time of hiring, (3) the
expectations were reasonable, and (4) the requirements of the job
did not change substantially since the date of the original hiring
for that particular position.
STATEMENT OF THE CASE
Claimant Denise L. Hammad worked as a word processor for the
appellee law firm, Tzangas, Plakas & Mannos ("the firm"), from
October 18, 1990 until July 23, 1991. Hammad's duties included
processing legal documents and letters which were dictated by the
various attorneys in the office. When she was hired, the firm
expected that Hammad would perform rapid and errorless typing.
The quality and quantity of Hammad's work product failed to meet
the firm's expectations. Hammad persistently made serious typing
errors, which were compounded by her failure to proofread her work
product. There were times when simple documents would go through
three or four drafts in order to correct errors which could have
been corrected at the outset by a competent word processor.
The firm reprimanded Hammad on two occasions, notifying her that
her job was in jeopardy and that she needed to improve. Although
the firm's office manager noted that Hammad's performance had
improved somewhat at the time of the second reprimand, Hammad was
never able to improve enough to meet her employer's
expectations.
That fact is best exemplified by Hammad's last day on the job.
An attorney in the firm requested Hammad to prepare six form
notices, which required Hammad only to type in names, dates, and
times. The assignment had to be returned to Hammad for corrections
three or four times, and still the notices were sent out containing
mistakes.
Based upon these facts, on July 23, 1991, the firm discharged
Hammad for failing to adequately perform her job duties. On August
1, 1991, Hammad applied for unemployment compensation benefits, and
her application was allowed by the Administrator of the Ohio Bureau
of Employment Services ("administrator") on September 18, 1991. On
reconsideration, that decision was affirmed on November 8,
1991.
The firm appealed that decision, but on March 23, 1992,
following an oral hearing with both parties present, a referee of
the Unemployment Compensation Board of Review ("the board")
affirmed the administrator's decision allowing the benefits. The
referee ruled that absent evidence of willful or wanton misconduct
by Hammad, the firm did not discharge her for just cause in
connection with work.
On April 10, 1992, the firm instituted a further appeal to the
board. On July 24, 1992, the parties had a hearing before another
board referee. The board, on September 4, 1992, found that Hammad's
inability, not her unwillingness, to improve her typing skills, led
to the firm's firing of her. The board concluded that Hammad's
inability to perform her job did not constitute fault and that she
was therefore discharged without just cause, for unemployment
compensation purposes.
The firm appealed the board's decision to the Court of Common
Pleas of Stark County. On April 30, 1993, the court affirmed the
board's decision. The court determined that there was no fault on
the part of Hammad and that she was merely incapable of performing
her job. The court found that that inability did not constitute
fault, and that an employee can be found at fault only upon a
"willful or heedless disregard of duty or violation of [employer]
instructions."
On May 28, 1993, the firm appealed to the Stark County Court of
Appeals. On December 30, 1993, the appellate court reversed the
decision of the trial court. The court determined that as an
appellate court, it had the same duty as the common pleas court to
determine whether the board's decision was unlawful, unreasonable,
or against the manifest weight of the evidence. The court rejected
the lower court's and the board's fault-based analysis and
developed in its place a "totality of the circumstances test."
Based upon that test, the court determined that "[Hammad's]
inability to perform said tasks, while not her or anyone else's
fault, served as a sufficient justification for her dismissal."
On January 31, 1994, the administrator filed a motion to certify
a conflict. On February 17, 1994, the appellate court, finding that
certain aspects of its December 30, 1993 decision conflicted with
other Ohio appellate court decisions, certified the record of the
case to this court for review and final determination.
Specifically, the appellate court found a conflict regarding its
standard of review in unemployment compensation appeals, and a
conflict regarding its rejection of fault-based analysis.
COUNSEL
Tzangas, Plakas & Mannos, Beth A. Raies
and David L. Dingwell, for appellee.
Betty D. Montgomery, Attorney General,
James A. Barnes and Stefan J.
Schmitt, Assistant Attorneys General, for appellant.
JUDGES
Pfeifer, J. Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ.,
concur. Wright and Cook, JJ., separately concur.
AUTHOR: PFEIFER
OPINION
{*696} In this case we resolve three issues: (1) the scope
of an appellate court's review of unemployment compensation cases,
(2) whether an employee must be at fault in order for a termination
to be made for just cause, and (3) whether unsuitability for
required work constitutes fault sufficient to support a just cause
termination. On the first issue, we find that appellate courts may
reverse a board decision if it is unlawful, unreasonable or against
the manifest weight of the evidence. On the second issue, we find
that fault is required for a termination to be made with just
cause. Finally, unsuitability for a position constitutes fault
sufficient to support a just cause termination.
I
In Irvine v. Unemp. Comp. Bd. of Review (1985),
19 Ohio St.3d 15, 17-18, 19 OBR 12, 15, 482 N.E.2d 587, 590, this
court held that reviewing courts may reverse "just cause"
determinations "if they are unlawful, unreasonable, or against the
manifest weight of the evidence." This court noted that while
appellate courts are not permitted to make factual findings or to
determine the credibility of witnesses, they do have the duty to
determine whether the board's decision is supported by the evidence
in the record. Id. at 18, 19 OBR at 15, 482 N.E.2d
at 590. This duty is shared by all reviewing courts, from the first
level of review in the common pleas court, through the final appeal
in this court.
Former R.C. 4141.28(O), now renumbered R.C. 4141.28(O)(1), the
statute setting forth the appeals process for unemployment
compensation cases, does not {*697} create distinctions
between the scope of review of common pleas courts and appellate
courts. To apply the same standard at each appellate level does not
result in a de novo review standard. As this court
stated in Irvine, "the fact that reasonable minds
might reach different conclusions is not a basis for the reversal
of the board's decision." Irvine at 18, 19 OBR at
15, 482 N.E.2d at 590. The board's role as factfinder is intact; a
reviewing court may reverse the board's determination only if it is
unlawful, unreasonable, or against the manifest weight of the
evidence.
II
To be eligible for unemployment compensation benefits in Ohio,
claimants must satisfy the criteria established pursuant to R.C.
4141.29(D)(2)(a), which provides:
"(D) * * * [No] individual may * * * 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 * * *."
In Irvine, supra, this court stated that
"'[t]raditionally, just cause, in the statutory sense, is that
which, to an ordinarily intelligent person, is a justifiable reason
for doing or not doing a particular act.'" Irvine
at 17, 19 OBR at 14, 482 N.E.2d at 589, citing Peyton v.
Sun T.V. (1975), 44 Ohio App.2d 10, 12, 73 O.O.2d 8, 9,
335 N.E.2d 751, 752. Just cause determinations in the unemployment
compensation context, however, also must be consistent with the
legislative purpose underlying the Unemployment Compensation Act.
The Act exists "'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.'" (Emphasis
sic.) Irvine at 17, 19 OBR
at 14, 482 N.E.2d at 589, citing Leach v. Republic Steel
Corp. (1964), 176 Ohio St. 221, 223, 27 O.O.2d 122, 123,
199 N.E.2d 3, 5. "'The [A]ct 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.'" Irvine at 17, 19 OBR at
14, 482 N.E.2d at 589, citing Salzl v. Gibson Greeting
Cards (1980), 61 Ohio St.2d 35, 39, 15 O.O.3d 49, 52, 399
N.E.2d 76, 79. Thus, while a termination based upon an employer's
economic necessity may be justifiable, it is not a
just cause termination when viewed through the
lens of the legislative purpose of the Act.
The Act does not exist to protect employees from themselves, but
to protect them from economic forces over which they have no
control. When an employee {*698} is at fault, he is no
longer the victim of fortune's whims, but is instead directly
responsible for his own predicament. Fault on the employee's part
separates him from the Act's intent and the Act's protection. Thus,
fault is essential to the unique chemistry of a just cause
termination.
While this court did hold in Irvine that "the
determination of whether just cause exists necessarily depends upon
the unique factual considerations of the particular case,"
Irvine at 17, 19 OBR at 15, 482 N.E.2d at 590,
that does not compel the appellate court's abandonment of
fault-based just cause analysis in favor of a "totality of the
circumstances" examination. Instead, Irvine
recognizes that the question of fault cannot be rigidly defined,
but, rather, can only be evaluated upon consideration of the
particular facts of each case. If an employer has been reasonable
in finding fault on behalf of an employee, then the employer may
terminate the employee with just cause. Fault on behalf of the
employee remains an essential component of a just cause
termination.
III
In this case, the question is whether Hammad's unsuitability to
perform the work required by the firm constituted fault for which
the firm may have discharged her for just cause. The common pleas
court held that an employee satisfies the fault requirement only
upon a "willful or heedless disregard of duty or violation of
[employer] instructions." To rule that way is to ignore that
ability is relevant in the workplace. There is
little practical difference between an employee who will
not perform her job correctly and one who
cannot perform her job correctly. In either case,
the performance of the employee is deficient. That deficiency,
which does not result from any outside economic factor, constitutes
fault on the employee's behalf.
To find that an employee is entitled to unemployment
compensation when she is terminated for her inability to perform
the job for which she was hired would discourage employers from
taking a chance on an unproven worker. Most employees need an
employer to take a leap of faith when initially hiring them. An
employer relies upon an employee's representations that she can
adequately perform the required work. Likewise, an employee relies
upon an employer's description of what the job will entail. The
party that fails to live up to those expectations is at fault.
Unsuitability for a position constitutes fault sufficient to
support a just cause termination. An employer may properly find an
employee unsuitable for the required work, and thus to be at fault,
when: (1) the employee does not perform the required work, (2) the
employer made known its expectations of the employee at the time of
hiring, (3) the expectations were reasonable, and (4) the
requirements {*699} of the job did not change since the
date of the original hiring for that particular position.
In this case, there is no dispute that Hammad continually made
serious typing and proofreading errors requiring duplicative
efforts by her and by attorneys at the firm. At every level in this
case, Hammad was found to be unsuitable for the required work. The
record establishes that the firm made reasonable efforts to avoid
terminating Hammad, including verbal reprimands and warnings that
she would be discharged unless her performance improved. Second,
Hammad never claimed that she was unaware of the requirements of
her job or of the demanding performance expected of her as a normal
part of her employment. Third, testimony at the board hearing shows
that a word processor hired at the same time as Hammad had
fulfilled the firm's expectations and continued to be employed by
the firm, demonstrating the reasonableness of the job's
requirements. Finally, Hammad was not the victim of downsizing at
the firm, nor was her original job description changed to a
position different from the one she originally accepted.
That Hammad wished to perform better cannot obviate the plain
fact that she could not fulfill the minimum standards the firm
required of her. She was simply terminated because she could not do
the required work. While that may not be her fault in a moral
sense, it does constitute fault in a legal sense sufficient for her
termination to have been made with just cause.
For the foregoing reasons, the judgment of the court of appeals
is affirmed.
Judgment affirmed.
Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur.
Wright and Cook, JJ., separately concur.
DISPOSITION
Judgment
affirmed.
CONCURRENCE
Wright, J., concurring.
I concur in paragraphs one, two, and three of the syllabus and
the judgment only.
Cook, J., concurs in the foregoing concurring opinion.