MORRIS,
Appellee,
vs.
Conrad, Admr.,
OHIO BUREAU OF EMPLOYMENT
SERVICES
No. 93AP-255
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
629 N.E.2d 35, 90 Ohio App. 3d 295
September 14, 1993, Decided
APPEAL from the Franklin County Court
of Common Pleas.
COUNSEL
Gary Paul Price, for appellee.
Lee Fisher, Attorney General, James
A. Barnes and Virginia M. Wall, Assistant
Attorneys General, for appellant.
JUDGES
Whiteside, Judge. Bowman and John C. Young, JJ., concur.
AUTHOR: WHITESIDE
OPINION
{*296} Appellant, the Administrator of the Ohio Bureau of
Employment Services ("OBES"), appeals from a judgment in the
Franklin County Court of Common Pleas granting unemployment
compensation to appellee, Nicholas J. Morris, and raises the
following assignments of error:
{*297} 1. "The lower court abused its discretion by
reversing the board of review['s] decision when the evidence
clearly established that appellant failed to meet a term and
condition of employment."
2. "The lower court abused its discretion by applying a standard
that is inapplicable to a contractual employment situation."
Appellee was employed by Ned Bard & Son Co. as a truck
driver from July 18, 1989 until May 3, 1991. The appellee's
driver's license was suspended as a result of citations his brother
had received using a license in appellee's name obtained without
appellee's knowledge or consent. As a result of the license
suspension, the trucking company disqualified appellee as a driver.
A stay of the license suspension was granted by the Franklin County
Common Pleas Court. Appellee attempted to appeal the decision of
the Ohio Bureau of Motor Vehicles imposing the license suspension,
but filed his appeal in municipal court, rather than common pleas
court. The municipal court transferred the appeal to the common
pleas court, which dismissed the appeal for lack of jurisdiction
because the appeal was not originally filed in that court. The
common pleas court then lifted the stay, and the suspension of
appellee's driving privileges resumed. The employer discharged
appellee because he did not have a valid driver's license.
Appellee filed an application for determination of benefit
rights on May 8, 1991. His first weekly claim was disallowed. A
request for reconsideration was denied. The Unemployment
Compensation Board of Review ("board of review") affirmed the
denial of benefits since appellee failed to meet a condition of his
continued employment. Appellee attempted to institute further
appeal to the board of review, but the appeal was disallowed on
February 20, 1992. Appellee then filed an appeal to the Franklin
County Court of Common Pleas.
The Franklin County Court of Common Pleas reversed the board of
review's decision and remanded the case with instructions to allow
appellee's application for benefits. OBES has appealed that
decision to this court.
As the assignments of error are related, they will be discussed
together. OBES contends that the common pleas court abused its
discretion by reversing the board of review's decision. The
standard of review for a common pleas court in such situations is
provided for by R.C. 4141.28(O), as follows:
"* * * 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 * * *; otherwise such court
shall affirm such decision. * * *" See, also,
Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St.
511, 515, 36 O.O. 167, 169, 76 N.E.2d 79, 82.
Therefore, the common pleas court must have found that the
decision by the board of review denying appellee benefits was
unlawful, unreasonable or against {*298} the manifest
weight of the evidence. As this court has earlier stated in
Angelkovski v. Buckeye Potato Chips
Co., Inc. (1983), 11 Ohio App.3d 159, 161, 11 OBR 242,
244, 463 N.E.2d 1280, 1282, "[t]he role of the court of common
pleas, upon an appeal based on factual grounds, is limited to
determining whether the board's decision is supported by evidence
in the record," citing Kilgore v. Bd. of Review
(1965), 2 Ohio App.2d 69, 71, 31 O.O.2d 108, 109, 206 N.E.2d 423,
424. We must determine whether the trial court abused its
discretion in so finding.
As stated by the Ohio Supreme Court in Leach v. Republic
Steel Corp. (1964), 176 Ohio St. 221, 223, 27 O.O.2d 122,
123, 199 N.E.2d 3, 5, the purpose of the Ohio Unemployment
Compensation Act "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." (Emphasis
sic.) See, also, Irvine v. Unemp. Comp.
Bd. of Review (1985), 19 Ohio St.3d 15, 17, 19 OBR 12, 14,
482 N.E.2d 587, 589. The court also discussed the intent of this
Act in Salzl v. Gibson Greeting Cards, Inc.
(1980), 61 Ohio St.2d 35, 39, 15 O.O.3d 49, 51, 399 N.E.2d 76, 79,
stating that "the 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." See, also, Irvine.
R.C. 4141.29(D) provides:
"* * * No individual may * * * be paid benefits under the
following conditions:
"* * *
"(2) For the duration of his unemployment if the administrator
finds that:
"(a) He * * * has been discharged for just cause in connection
with his work * * *."
The Administrator found that appellee was discharged for just
cause and therefore denied his application for weekly benefits. The
trial court reversed that decision because no just cause existed
for appellee's termination.
"Just cause" has been described by the Ohio Supreme Court in
Irvine, supra, 19 Ohio St.3d at 17, 19 OBR at 14,
482 N.E.2d at 589:
"* * * '[T]here 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 ordinarily intelligent person, is a
justifiable reason for doing or not doing a particular act.' * * *"
Quoting Peyton v. Sun T.V. & Appliances
(1975), 44 Ohio App.2d 10, 12, 73 O.O.2d 8, 9, 335 N.E.2d 751,
752.
{*299} The Administrator found that just cause existed
to terminate appellee's employment because he had failed to meet a
requirement of his employment -- namely, to maintain a valid
driver's license. This was a requirement imposed upon the employer
by both its insurance company, which would not insure a driver
without a license, and the United States Department of
Transportation (Section 391.15 of the Fleet Safety Compliance
Manual). If the employer allowed a driver to drive without a valid
commercial driver's license, the employer would be subject to a
fine. Although, from the employer's perspective, the termination
was for just cause since appellee could no longer perform the work
for which he was hired, "just cause" as used in R.C. 4141.29 refers
to a justifiable reason for terminating an employee from the
employee's perspective and necessarily must be predicated upon
conduct of the employee. For example, an employer who has
insufficient work to keep an employee may have "just cause" for
discharge from the employer's perspective, but the employer does
not have "just cause" under R.C. 4141.29(D).
The trial court reversed the board of review's decision because
the hearing examiner determined that fault was not an issue. The
trial court stated:
"* * * [T]he court must also consider whether or not there was
any fault of the appellant [appellee] involved in his loss of
license because to be terminated for just cause requires some fault
on the part of the terminated employee, absent the existence of an
overwhelming contractual provision. Sellers v. Unemployment
Comp. Bd. of Review (1981), 1 Ohio App.3d 161 [1 OBR 473,
440 N.E.2d 550]."
This court, in paragraph two of the syllabus of
Sellers, determined that, in order to constitute
just cause under R.C. 4141.29 "* * * there must be some fault on
the part of the employee involved, in the absence of an
overwhelming contractual provision. Such fault does not require
misconduct; but, nonetheless, fault must be a factor in the
justification for discharge." In other words, to determine whether
just cause exists, there must first be conduct by the employee,
which in turn must be unjustifiable. The fault required is conduct
by the employee for which the employee is responsible. It does not
necessarily have to be wrongful conduct or misconduct. In this
case, there was no conduct of appellee for which he is responsible
which caused the condition leading to termination of his
employment.
OBES states that the employment relationship in this case
necessarily involves "an overwhelming contractual provision." OBES
contends that, to maintain a statutorily required condition of
employment, "is contractual in nature and overwhelming in terms of
its importance and necessity." The apparent contention is that,
since appellee was required to maintain a valid driver's license,
but could not do so, fault is not an issue.
{*300} The trial court properly did not adopt this
argument. The trial court stated:
"* * * In considering this case in light of both
Sellers and Peyton, supra, this
court believes that appellant was no longer suitable for his
employment upon the loss of his license, but through no fault of
his own. * * *"
There was no express contractual provision as to licensing.
However, it is obvious that a truck driver must have a valid
license permitting him to drive the truck. That, however, is not
the issue here. This "condition" of being licensed is no different
from the condition requiring an employee to report for work every
day, as in Sellers, supra. In
Sellers, this court determined that an employee
who was discharged because she was absent from work for legitimate
reasons was not discharged with just cause, and the dicta
suggesting that the result might be otherwise if there be "an
overwhelming contractual obligation" must be read in light of those
facts.
The issue is not whether the discharge itself is wrongful or
justified from an employment-contract viewpoint. Rather, there is a
distinct difference between a wrongful discharge and "just cause
for discharge," pursuant to R.C. 4141.29. Appellee seems to meet
the Salzl definition of an individual the Ohio
Unemployment Compensation Act was intended to assist as "an
individual who had worked, was able and willing to work, but was
temporarily without employment through no fault or agreement of his
own." Salzl, 61 Ohio St.2d at 39, 15 O.O.3d at 52,
399 N.E.2d at 79.
There must be conduct of the employee causing the discharge for
there to be just cause for discharge. In addition, such conduct
must be of a nature that it is not justifiable. This is the holding
in Sellers and Peyton. See
Sellers, 1 Ohio App.3d at 164, 1 OBR at 475, 440
N.E.2d at 552. This court determined in Peyton
that an applicant could not be denied benefits for resigning from a
job because of obvious incompatibility with the work he was
attempting to perform.
This case is different from
Mayes v. Ohio Bur. of Emp.
Serv. (1986), 32 Ohio App.3d 68, 513 N.E.2d 818, where
this court affirmed the denial of benefits to an applicant who was
a school bus driver. The driver was convicted of driving while
intoxicated for an offense during off-work hours but was refused
insurance by the school's insurance company. The school district
revoked her bus driver's certificate and terminated her employment.
The denial of unemployment compensation was affirmed because the
just-cause finding was appropriate. The loss of driving privileges
by Mayes was a direct result of unjustifiable conduct on her part
in that she was convicted of driving while intoxicated, even though
not workrelated. Mayes supports the trial court's
conclusion since here no conduct of appellee was involved in
causing the suspension of his driving rights.
{*301} In this case, both the employer and appellee
agree that the loss of driving privileges was through no fault of
appellee. The hearing examiner did not find otherwise. The common
pleas court did not abuse its discretion in finding there has been
no showing of just cause for appellee's termination from
employment. This is not inconsistent with the board of review's
determination since it refused to consider "fault," applying
instead the employment-contract standard for wrongful discharge.
Therefore, we find that the trial court did not abuse its
discretion in finding, as a matter of law, that appellee was
terminated without just cause as required by R.C. 4141.29 and was,
therefore, entitled to benefits since the evidence does not support
a finding that conduct of appellee created the condition resulting
in discharge. Consequently, both of appellant's assignments of
error are not well taken.
For the foregoing reasons, both of appellant's assignments of
error are overruled, and the judgment of the Franklin County Court
of Common Pleas is affirmed.
Judgment affirmed.
Bowman and John C. Young, JJ., concur.
DISPOSITION
Judgment
affirmed.