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.