YOUNG, APPELLEE,
vs.
TORTILLA FLATS ET AL.;
STEINBACHER, ADMR.,
OHIO BUREAU OF
EMPLOYMENT SERVICES,
APPELLANT
No. 86AP-1001
COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN
COUNTY
523 N.E.2d 519, 37 Ohio App. 3d 41
March 31, 1987, Decided
HEADNOTE
Unemployment compensation -- R.C. 4141.291(A)(2) --
Voluntary quit to accept other employment -- Requirement that
employee begin new employment within seven days satisfied,
when.
SYLLABUS
The time period during which a claimant receives vacation pay
following a voluntary resignation constitutes employment for
purposes of satisfying the seven-day requirement of R.C.
4141.291(A)(2).
COUNSEL
Thomas Sico, for appellee.
Anthony J. Celebrezze, Jr., attorney
general, Patrick Devine and Lawrence J.
Hackett, for appellant.
JUDGES
YOUNG, J. REILLY and BOWMAN, JJ., concur.
AUTHOR: YOUNG
OPINION
{*41} The Ohio Bureau of Employment Services ("OBES")
denied Barbara M. Young's claim for unemployment compensation. She
appealed to the Ohio Unemployment Compensation Board of Review and
the board affirmed the referee's recommendation to deny her
benefits. The board of review denied her application to institute a
further administrative appeal. She then appealed to the Franklin
County Court of Common Pleas, whereupon the trial court reversed
the decision of the board of review and allowed appellee's
claim.
Appellee had been employed as an assistant manager at Denny's,
Inc. She had an opportunity to become a manager, with better pay
and more desirable hours, at Tortilla Flats. She gave Denny's a
two-week notice, with her resignation to be effective on October
20, 1983. Appellee received vacation pay for the period from
October 21 through November 3, 1983. She worked at Tortilla Flats
from November 9, 1983 to December 2, 1983 and quit with just
cause.
OBES asserts the following assignment of error:
"As contemplated by R.C. 4141.29 (D)(2)(a) and R.C. 4141.291,
where a claimant quits her present employment in order to take a
better job, such is without just cause and the disqualification
imposed thereby may only be removed by satisfying the requirements
set forth in R.C. 4141.291 and R.C. 4141.29(G)."
R.C. 4141.29(D)(2)(a) states:
"(D) Notwithstanding division (A) of this section, no individual
may serve a waiting period or be paid benefits under the following
conditions:
"* * *
"(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 a case with similar facts, the court held that an employee
who voluntarily quits a job after six and one-half years of steady
employment to accept a job with an increase in pay, even though the
new employment lasted only one week and two days, was not
disqualified from receiving benefits under R.C. 4141.29(D)(2)(a).
Layton v. Bur. of Unemp.
Comp. (1965), 7 Ohio {*42} Misc. 84, 36 O.O. 2d
146, 218 N.E.2d 767. Therefore, in the instant case, appellee's
resignation from Denny's to accept a better-paying position with
Tortilla Flats constituted a quit with just cause under R.C.
4141.29(D)(2)(a).
Next, OBES takes issue with whether appellee satisfied the
seven-day requirement of R.C. 4141.291(A)(2). This section
states:
"(A) Notwithstanding section 4141.29 of the Revised Code, an
individual who voluntarily quits his work:
"* * *
"(2) To accept a recall to employment from a prior employer for
whom the individual has worked for less than five years, or to
accept other employment subject to sections 4141.01 to 4141.46 of
the Revised Code, or the unemployment compensation act of another
state, or of the United States, where he commences such
employment within seven calendar days, and in such
employment works three weeks and earns wages equal to one and
one-half times his average weekly wage or one hundred eighty
dollars, whichever is less[.]" (Emphasis added.)
Appellant contends that the trial court improperly allowed
appellee's vacation time, October 21 through November 3, 1983, to
constitute "workemployment" for purposes of satisfying the
requirement of R.C. 4141.291(A)(2) that appellee commenced work
within seven days of leaving her previous job.
The First District Court of Appeals recently decided this issue
and this court agrees with its reasoning. See Harkins
v. Ohio Bur. of Emp.
Serv. (Dec. 10, 1986), Hamilton App. No. C-860039,
unreported. In Harkins the court held that the
time period compensated by vacation pay constituted employment for
purposes of R.C. 4141.291(A)(2). Likewise, in the instant case,
appellee's resignation at Denny's was effective October 20, 1983.
However, she received vacation pay for the period of time from
October 21 through November 3, 1983; so, her resignation was not
really "effective" until November 3, 1983. She worked at Tortilla
Flats from November 9, 1983 to December 2, 1983 and quit with just
cause. However, even though appellee performed no services at
Denny's between October 21 through November 3, 1983, she remained
in its employ and received paychecks or "regular earnings" for that
two-week period. Clearly, appellee would not have otherwise been
entitled to unemployment compensation benefits since she was
employed and was receiving wages. Appellee's vacation pay qualifies
as employment for purposes of R.C. 4141.291(A)(2). From the time
appellee left Denny's employ on November 3, 1983 and commenced
employment at Tortilla Flats on November 9, 1983, seven days had
not elapsed. Therefore, based on the decision in
Harkins, appellee has met the seven-day
requirement of R.C. 4141.291(A)(2) to requalify her for
unemployment benefits.
Based on the foregoing analysis, the trial court's decision is
not unlawful, unreasonable, or against the manifest weight of the
evidence. See R.C. 4141.28(O). The sole assignment of error
asserted by OBES is not well-taken and is overruled.
Judgment affirmed.
DISPOSITION
Judgment
affirmed.