Mary V. Hauser, APPELLEE

vs.

Decko Products, Inc., et al, APPELLANTS

C.A. No. E-78-16
COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, ERIE COUNTY
Slip Opinion
October 20, 1978

CASE STATUS: * PURSUANT TO RULE 2(G) OF THE OHIO SUPREME COURT RULES FOR THE REPORTING OF OPINIONS, UNPUBLISHED OPINIONS MAY BE CITED SUBJECT TO CERTAIN RESTRAINTS, LIMITATIONS, AND EXCEPTIONS.

APPEAL FROM ERIE COUNTY COMMON PLEAS COURT, NO. 42193

 JUDGES

 

John W. Potter, P.J., Clifford F. Brown, J., John J. Connors, Jr., J., CONCUR.

 OPINION

 

 

 
DECISION & JOURNAL ENTRY

 

This cause came on to be heard upon the record in the trial court. Each assignment of error was reviewed by the court and upon review the following disposition made:

 

This appeal is brought by the Board of Review and the Administrator of the Ohio Bureau of Employment Services from a decision of the Erie County Common Pleas Court, which reversed the decision of the Board of Review and held that Mary V. Hauser, Claimant-Appellee, be granted and paid unemployment benefits properly claimed by her.

 

The relevant findings of fact made by the referee and agreed to by both parties are as follows: Claimant filed an application for determination of benefit rights on December 6, 1976, with respect to a benefit year beginning December 12, 1976. Claimant filed an additional claim for benefits with respect to the week ending June 4, 1977. Prior to the filing of said claim, claimant was last employed by Decko Products, Inc., where she worked from July 22, 1965, to May 25, 1977. Claimant quit her work with Decko Products, Inc., in order to accept employment with Ford Motor Company. Claimant was advised at the time that she took her physical examination for employment at Ford Motor Company that she could commence working on May 31, 1977. Claimant was not allowed to work, however, as the plant physician felt that claimant had irregularities in her electrocardiogram which warranted not allowing her to work. Claimant never did begin working for Ford Motor Company.

 

Upon her original claim for relief, the administrator, on reconsideration, found claimant had quit her employment under disqualifying conditions and was not entitled to unemployment compensation. A timely appeal was filed and a hearing was held on September 1, 1977. On finding the above stated facts, the referee affirmed the administrator's decision on reconsideration.

 

On October 20, 1977, the Board of Review unanimously disallowed claimant-appellee's application to institute a further appeal.

 

That decision was appealed to the Erie County Common Pleas Court. On March 21, 1978, that Court held that the decision of the Board of Review was "unreasonable, manifestly against the weight of the evidence and contrary to law."

 

The appellant's only assignment of error is:

 

"The Court of Common Pleas committed reversible error when it held that the decision of the Board of Review was 'unreasonable, manifestly against the weight of the evidence and unlawful' because R.C. 4141.291(A), clearly provides that an individual who quits his employment to accept other employment is not qualified to receive unemployment compensation benefits unless such individual commences such employment within seven calendar days and works three weeks and earns wages equal to one and one-half times his average weekly wage or one hundred eighty dollars, and the claimant met none of those requirements."

 

The pertinent parts of Sections 4141.29(D)(2)(a), 4141.29(G), and 4141.291, Ohio Revised Code, which apply to appellee provide that:

 

"4141.29(D) Notwithstanding division (A) of this section, no individuals 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 * * *

 

"4141.29(G) 'Duration of his unemployment', as used in this section, means the full period of unemployment next ensuing after a separation from any base period or subsequent work until an individual has become re-employed in 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, and until such individual has worked six weeks and has earned wages equal to three times his average weekly wage or three hundred sixty dollars, whichever is less, * * *

 

"4141.291(A) Notwithstanding section 4141.29 of the Revised Code, an individual who voluntarily quits his work to accept recall from a prior employer where refusal to accept such recall would result in a loss of rights and benefits under a labor-management agreement or a company policy, or, to accept other employment subject to sections 4141.01 to 4141.46, inclusive, of the Revised Code, or the unemployment compensation act of another state, or of the United States, commences such employment within seven calendar days, and in such other 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, shall remove the disqualification imposed by division (D)(2)(a) of section 4141.29 of the Revised Code and shall be deemed to have fully complied with division (G) of such section."

 

The record presented to this court on appeal indicates that appellee quit her work with Decko Products, Inc., to accept other employmen but that she never did begin such other employment, albeit through no fault of her own.

 

The referee, in affirming the decision of the administrator on reconsideration, concluded that the appellee did not meet the requirements of R.C. 4141.291 which would have removed the suspension of benefits Imposed by R.C. 4141.29(D)(2)(a). This conclusion was based on his finding that appellee neither commenced the other work within seven calendar days, nor worked such other employment for three weeks, nor earned wages of one hundred eighty dollars or more.

 

It is not our function to conduct a hearing de novo nor to substitute our judgment for that of the administrator or Board of Review. Kilgore v. Board of Review (1965), 2 Ohio App. 2d 69. We conclude that the decision of the referee was reasonable, supported by credible evidence, and in accordance with the law. Therefore, we find the Common Pleas Court erred in reversing the decision of the Board of Review.

 

The only case relied upon by the appellee is Layton v. Bureau of Unemployment Compensation (1965), 7 Ohio Misc. 84. The case was decided prior to the enactment of amended R.C. 4141.291. The Legislature, in 1968, made it clear what the requirements are to remove the disability of quitting without just cause, to accept new employment. Due to the enactment of subsequent legislation on this point, Layton is no longer controlling on the issue herein presented. While this may seem to be a harsh result under the facts presented in the case sub judice, the language of the statute is clear.

 

The appellant's only assignment of error is found well taken.

 

Upon consideration whereof, this court finds that substantial justice has not been done the party complaining. Judgment of the Erie County Common Pleas Court is reversed.

 

Now coming to enter the judgment that should have been entered by the lower court, the decision of the Board of Review denying appellee's claim for unemployment compensation benefits is affirmed.

 

This cause is remanded to the Erie County Common Pleas Court for execution for costs which are assessed against appellee.

 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

 

Ten (10) days from the date hereof this document shall constitute the journal entry of judgment and shall be file stamped by the Clerk of the Court of Appeals, at which time the period for review will begin to run. App. R. 22(E).