HYMAN L. FRIEDMAN, Plaintiff-Appellant,

vs.

PHYSICIANS AND SURGEONS AMBULANCE SERVICE, et al.,

Defendants-Appellees

NO. 10287
COURT OF APPEALS, NINTH APPELLATE DISTRICT, SUMMIT COUNTY, OHIO
Slip Opinion
January 6, 1982

APPEAL FROM JUDGMENT ENTERED IN THE COMMON PLEAS COURT, COUNTY OF SUMMIT, OHIO, CASE NO. CV 80 5 1341

 COUNSEL

 

LYN MARIE SCHOTT, Attorney at Law, 800 Centran Bldg., Akron, OH 44308 for Plaintiff.
JAMES B. CHAPMAN, Attorney at Law, 409 Centran Bldg., Akron, OH 44308 for Defendants.
H. GENE SHACKLE, Attorney at Law, 500 Cleveland Ave., N.W., Canton, OH 44702 for Defendants.

 JUDGES

 

VICTOR, P.J., BELL, J., CONCUR
 AUTHOR: MAHONEY

 OPINION

 

 

 
DECISION AND JOURNAL ENTRY

 

This cause was heard November 12, 1981, upon the record in the trial court, and the briefs. It was argued by counsel for the parties and submitted to the court. We have reviewed each assignment of error and make the following disposition:

 

Appellant Hyman Friedman appeals the Common Pleas Court's affirmance of a Board of Review decision which disallowed Friedman's claim for unemployment compensation on the grounds that Physicians and Surgeons Ambulance Service (P & S) discharged him for just cause pursuant to R.C. 4141.29(D)(2)(a) and that he was not available for work as required by R.C. 4141.29(A)(4). We reverse and remand.

 

FACTS

 

Hyman Friedman became an ambulance driver in 1953 and worked for P & S from 1974 until his discharge on December 23, 1979. As a result of Akron city ordinances and Ohio statutes, P & S determined that to continue his employment, Friedman would have to obtain certification as an "emergency medical technician - ambulance" (EMT-A) pursuant to R.C. 4731.82, et seq. Friedman had obtained a three year EMT card, valid until August 31, 1979, under a grandfather clause in the statute. P & S president, Eric Voth, testified before the Board of Review referee, that in order to renew his EMT card, Friedman could prepare for the written examination by taking a 27 hour refresher course instead of a 98 hour training course. Friedman completed the refresher course, but failed the written portion of the EMT examination which he took in September, 1979. After indicating that he suffered from a reading disability the state provided an oral examination for Friedman to take. He failed this exam as well.

 

Voth indicated that P & S had notified Friedman that although the August 31, deadline had passed, they would retain his services if he took a course and became certified. After failing both attempts to pass the exam, P & S extended their promise, saying that Friedman could stay with P & S if he would get into another training course by the end of 1979. Both P & S and Friedman attempted to locate a course beginning before January 1, 1980, but met with no success. As the time for licensing was approaching and Friedman had not entered a training course, P & S discharged him effective December 23, 1979.

 

Approximately three weeks prior to this, on December 2, 1979, Friedman began a police officer training course at the Wayne County Joint Vocational School. The class met three nights a week from 6:30 to 10:30 p.m. Friedman made his first application for unemployment benefits for the week ending December 29, 1979, and subsequently filed for the weeks ending January 5, 1980, and January 12, 1980. On January 22, 1980, the Ohio Bureau of Employment Services (OBES) issued a determination of benefits which stated that Friedman was not subject to any disqualification resulting from his discharge. However, OBES disallowed his claims because his enrollment in the police course rendered him not fully available for work.

 

Friedman filed a request for reconsideration of the disallowance with the OBES administrator. The administrator's reconsideration decision, issued February 8, 1980, reaffirmed the initial determination entered January 22, 1980. Friedman filed an appeal with the Board of Review. After a hearing before a referee, a decision was released modifying the administrator's decision on reconsideration by finding that the discharge was for just cause as well as reaffirming the finding on Friedman's unavailability for work. The Board of Review disallowed any further appeal. Friedman instituted an appeal in the County of Summit Common Pleas Court from both findings of the Board of Review referee. The Common Pleas Court affirmed the Board of Review decision.

 

ASSIGNMENT OF ERROR I

 

"The referee did not have the jurisdiction to decide the issue of discharge for just cause."

 

Contrary to appellant's contention the referee did not lack jurisdiction to address the issue of discharge for just cause. Ohio Adm. Code 4146-5-03 provides that any issue within the jurisdiction of the Administrator of OBES:

 

"* * * shall be heard, considered and decided by the Board or the Referee to whom the case is assigned for decision though not specifically (a) considered or referred to by the Administrator in his decision, (b) indicated in the appeal, or (c) raised by an interested party. * * *."

 

We deem this provision a sufficient basis upon which the referee could modify the administrator's decision on the issue of whether Friedman's discharge was for just cause.

 

ASSIGNMENT OF ERROR II

 

"Mr. Friedman was discharged without just cause because of a change in the law occurring after he was hired and not because of any misconduct or fault on his part."

 

Appellant challenges the decision that Friedman's discharge was for just cause and thus, a basis for disallowing unemployment benefits under R.C. 4141.29(D)(2)(a), which provides in part:

 

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

 

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

 

"He quit his work without just cause or has been discharged for just cause in connection with his work, * * *."

 

There is no "slide-rule definition" of just cause but rather each case must turn on its own merits. Peyton v. Sun T.V. (1975), 44 Ohio App. 2d 10, 12. R.C. 4141.46 requires that the Unemployment Compensation Act be liberally construed. In accordance with this principle a determination of just cause which might disqualify a claimant is to be made from the standpoint of the employee rather than the employer.In re: Krug (1977), Unempl. Ins. Rep., Ohio Rulings and Decisions 1971-1979, (CCH), paragraph 9137.

 

"* * * 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. * * *."

 

Salzi v. Gibson Greeting Cards (1980), 61 Ohio St. 2d 35, 39.

 

Therefore, absent any culpability on the part of Friedman the discharge cannot be considered as with "just cause" for purposes of denying benefits. In Re: Krug, supra. See also Chester v. Board (1959), 82 Ohio Law Abs. 182; Coey v. Burwell Nurseries (1965), 2 Ohio App. 2d 102; and Nickolich v. Giles (Summit Co. Ct. App. No. 10281, Decided November 25, 1981), unreported.

 

No such culpability exists in this case. We are not concerned with the motivation or correctness of the employer's decision to discharge Friedman based upon a statutory requirement. Nickolich, supra.1 The referee focused on the idea that Friedman had the responsibility to remain certified and the duty to participate in a refresher course in order to pass the examination. The referee mistakenly states in his decision that Friedman failed to enter such a course. Both his employer and Friedman testified that in fact he took the 27 hour refresher course. Furthermore, at his employer's behest Friedman attempted to enter a 98 hour course prior to January 1, 1980, but was unsuccessful.

 

These actions indicate a conscious effort to comply with the law and the requests of P & S. Friedman did nothing deliberate to the detriment of his employer. At most, his failure to obtain certification evidence an incapability to perform his job as required, in this instance, by statute. Incapability due to a learning disability is not the culpability necessary to constitute just cause for the denial of benefits. See, In Re: Krug, supra. Therefore, we find that the referee's conclusion regarding Friedman's discharge was against the manifest weight of the evidence and contrary to law. Consequently, the Common Pleas Court erred in affirming the Board of Review decision.

 

ASSIGNMENT OF ERROR III

 

"Mr. Friedman's attendance at school before becoming unemployed provided proof of his availability to work while attending school."

 

Appellant asserts that the determination that Friedman was unavailable to work, due to his enrollment in vocational school, is contrary to law, unreasonable and against the manifest weight of the evidence. The record reflects that Friedman, in his initial application for benefits and in his subsequent request for reconsideration, stated that he was not available for work on second shift because of his school attendance. However, at the hearing before the referee he stated that he did consider himself available because he would have taken a second shift job if one had been offered.

 

R.C. 4141.29(A)(4)(a) refers to an individual who becomes unemployed while attending school. This section requires the individual to make himself available on any shift of hours for suitable employment. Therefore, whether Friedman had shown such an availability is a fact question to be resolved by the referee. Brown-Brockmeyer Co. v. Roach (1947), 148 Ohio St. 511, 518. In accordance with R.C. 4141.28(O) a reviewing court will reverse the referee's decision only if it is unlawful, unreasonable or against the manifest weight of the evidence. In light of the evidence before the referee, it was not erroneous for him to conclude that Friedman was not available for work as required by the statute.

 

SUMMARY

 

We overrule assignments of error one and three. We sustain assignment of error two, and, therefore, reverse the judgment below and remand this case to the Common Pleas Court to enter judgment consistent with this decision.

 

The court finds that there were reasonable grounds for this appeal.

 

We order that a special mandate, directing the County of Summit Common Pleas Court to carry this judgment into execution, shall issue out of this court. A certified copy of this journal entry shall constitute the mandate, pursuant to App. R. 27.

 

Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App. R. 22(E).

 

Costs taxed to appellees.

 

Exceptions.

 OPINION FOOTNOTES

 

 

 
1 Regardless of Friedman's inability to satisfy the requirements of the Ohio statute, it appears that the Akron City Ordinances under which P & S was licensed, also could not have been satisfied. Akron Ordinance 806.05 requires that all ambulance drivers and EMTs possess a high school diploma or its equivalent. Friedman stated on his initial application to OBES that he had only completed eighth grade.