IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO
 
SUGAR CREEK PACKING COMPANY,
Appellant,
 
_VS_
 
RICHARD TUDOR, et al.,
Appellee.
 

CASE-NO. 85-3731
 
(Judge John W. Kessler)
 
DECISION AND ORDER
 
This matter is before this Court on appeal from a decision of the Unemployment Compensation Board of Review pursuant to Ohio Revised Code Section 4141.28(O).
 
Claimant was employed by Sugar Creek Packing Company from November, 1984, until May, 1985. (Tr. p. 2) When he was dismissed by the employer, claimant filed an application for benefit rights on. The employer's disciplinary point system called for dismissal after an accumulation of sixteen demerit-style points within a twelve month period. This system assigned different point values for various infractions. As noted in the Referee's decision,
appellee was late to work on December 27, 1984, January 4, 1985, and January 21, 1985. Appellee was assessed one point for each occasion. Appellee was assessed three points on January 24, 1985, for poor job performance.
Appellee was absent on January 25, 1985, and January 28, 1985. He was assessed two points for each day of absence. On February 4, 1985, appellee was assessed three points for improper job performance. On May 1, appellee was absent due to car problems and was assessed two points. On May 1`4, 1985, appellee was absent because of a back injury. He did furnish his employer with a doctor's statement. The appellee was assessed one point for this absence, because he was absent twice in a one month period. In accordance with the employer's disciplinary point system, the claimant was then terminated since he had accumulated sixteen points. The issue before the Board of Review was whether appellee was discharged without just cause. Ohio Revised Code Section 4141.29(D)(2)(a) notes that an individual will not get unemployment benefits if he is discharged with just cause. Ohio Rev. Code Section, 4141.29(D)(2)(a).
 
The claimant (appellee) contends that the decisions of the Unemployment Compensation Board of Review and the Referee's finding that claimant was discharged from his employment without just cause and, consequently, entitled to unemployment benefits, should be affirmed as they were reasonable, lawful, and not against the manifest weight of the evidence. The employer (appellant), contends that the Referee misinterpreted their disciplinary point system and that the entire record reflected a pattern of conduct which constituted just cause for termination. Therefore, appellant concludes the Referee's findings to the contrary are unlawful, unreasonable, and against the manifest weight of the evidence.
 
The Court derives its jurisdiction to hear the present appeal from Ohio Revised Code Section 414,1.28(0) which notes that the Court will reverse the decision of the Board "if the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence." Ohio Rev. Code, Section 4141.28, (see, also, Charles Livingston & Sons, Inc. v. Constance (1965) 115 Ohio App. 437, 438; Brown-Brockmeyer v. Roach (1947) 148 Ohio St. 511, 518.) The courts have no authority to disturb the Board's decision if the Board might reasonably decide the controversy either way. Charles Livingston & Sons, Inc. v. Constance at 438.
 

"If an employer wishes to discharge an employee for a breach of company rules and expects to claim the discharge is for just cause in connection with the employee's work,' such rules must be fair and they must be administered fairly." Harp v. Bureau of Unemployment Compensation (1967) 12 Ohio Misc. 34, 38. This Court finds appellant's rule is not fair, as it penalizes an employee for an excused absence. The Referee noted that "although the employer proports (purports) to recognize illness substantiated by a doctor's statement to be a legitimate reason for being absent, it does not do so as points are accessed (assessed) for excused absences." (Ref. Decis. p. 2). Absenteeism due to excused illness is not just cause for discharge. Schultz v. Herman's Furniture (1976) 52 Ohio App. 2d 161, 162; Atlas Industries, Inc. v. Giles, et al (1981) 8 Unempl. Ins. Rep. (CCH) Ohio Para 9368, 38,649. In accordance with this
finding, it is not unlawful, unreasonable or against the manifest weight of the evidence for the Referee to find that a company rule cannot assign disciplinary points based on excused absences against an employee.
 

Appellant takes issue with Referee's statement that appellee's absences on January 25, 1985, and January 28, 1985, constituted one occasion of absence deserving two points instead of four since appellee's off days intervened between those two dates. This Court need not assess the Referee's reasonableness on this issue as his decision is based on the fact that appellee was discharged because of a company rule which assessed a disciplinary point against an employee who was absent due to an illness over which he had no control.
 
It is, therefore, the finding of this Court that the decision of the Referee must be AFFIRMED.
 
SO ORDERED:
 
JOHN W. KESSLER, JUDGE
 
Copies of this Decision and order were forwarded to all parties listed below by ordinary mail this filing date.
 
Ogden K. Montgomery, Attorney for Appellant
Andrea F. Kravetz, Assistant Attorney General,
Gregg Findlay, Bailiff