VINEYARD WINE SHOPPE, Appellee,
vs.
WEISENT et a1.;Ohio Bureau of Employment Services,
Appellant.
No. 73917.
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT,
CUYAHOGA COUNTY
133 Ohio App.3d 268, 727 N.E.2d 935, 1999 Ohio App.
LEXIS 902
March 22, 1999, Decided.
COUNSEL
Betty D. Montgomery, Attorney General, and Betsey Nims Friedman, Assistant Attorney General,
for appellant.
JUDGES
KILBANE, J., SPELLACY, P.J., and CORRIGAN, J.
AUTHOR: KILBANE, Judge.
OPINION
Appellant, the Administrator of the Bureau of Employment Services
("OBES"), appeals the decision by Judge Frank Celebrezze, Jr., reversing its determination
that Vicki L. Weisent is entitled to
receive unemployment compensation benefits. It contends that Weisent's termination by appellee, Vineyard Wine Shoppe ("Vineyard"),
while on layoff does not preclude her receipt of benefits. We agree
and reverse.
Weisent worked for Vineyard as store
manager from January 1996 untilJune 6, 1996. OnJune 6,
1996, when Weisent should have been present, Vineyprd's liquor license was removed by the
previous owner of the shop and Vineyard was required to close for
an indefinite period of time. Weisent
informed her employer of the license removal on that date.
OnJune 15, 1996, Vineyard sent Weisent a letter, informing her that her
employment was terminated for poor performance. The poor
performance noted was that Weisent was
not at the shop, as she was scheduled to be, when the previous
owner removed the license.
OBES initially determined that Weisent
was eligible for unemployment benefits because she was separated
from Vineyard due to lack of work. Vineyard contested this
determination, claiming that she was separated one week after the
layoff due to her poor job performance. The decision allowing Weisent benefits was ultimately affirmed by
the Unemployment Compensation Board of Review. Vineyard appealed
the grant of benefits to theCuyahoga County Common Pleas Court. Judge Celebrezze
considered the appeal and onDecember 26, 1997, made the following journal entry:
"It is the finding of this Court that the decision of the Ohio
Unemployment Compensation Board of Review was unlawful,
unreasonable and against the manifest weight of the evidence.
Consequently, the decision of the Unemployment Compensation Board
of Review is reversed."
OBES's sole assignment of error
reads:
"The common pleas court erred in its decision reversing the Ohio
Unemployment Compensation Review Commission's [sic] finding that
claimant's separation from work entitled her to unemployment
compensation as there is competent, credible evidence in the record
that claimant was separated from her employment due to lack of
work."
Vineyard, while not filing a brief in this court, had successfully
argued to the trial court that Weisent's absence facilitated the loss of the
license and, thus, was, the cause of her own lack of work. It
contended that her discharge precluded receipt of any unemployment
benefits.
OBES argues that underOhiolaw
once Weisent was laid off, the
employment relationship was terminated and she could not be
discharged prior to being called back to work. A trial court may
not reverse a decision granting unemployment compensation benefits
unless it finds the decision to be unlawful, unreasonable, or
against the manifest weight of the evidence. Tzangas, Plakas
& Mannos v. Ohio Bur. of Emp. Serv.
(1995), 73 Ohio St.3d 694, 696, 653 N.E.2d 1207, 1210. In this
case, the trial court erred in finding that the OBES decision was
so flawed. In Distribution II Transmanagement Corp. v. Howell (Dec. 30,
1988), Franklin App. No. 86AP-507, unreported, 1988 WL 142114, the
court determined that once an employee was laid off for lack of
work, that employee could not thereafter be discharged unless
recalled to work, as the employee was already separated from work.
The court also stated that evidence of the employee's conduct prior
to the layoff was irrelevant if the employee was separated from
employment due to a lack of work.Id.
In the instant case, OBES's
determination followed a valid appellate court decision, and, thus,
OBES did not act unreasonably or unlawfully. Furthermore the
evidence in the record supports the finding that Weisent was precluded from working at
Vineyard because the store was closed; therefore, OBES's determination was not against the
manifest weight of the evidence. See, also, Simon v. Lake Geauga
Printing Co., (1982) 69OhioSt.2d
41, 23 O.O.3d 57, 430 N.E.2d 468.
Interestingly, the issue of whether Weisent's absence was the cause of the lack
of work was never factually determined. The trial court, sitting as
a court of appellate review, could not reverse on the basis that
OBES's determination was against the
manifest weight of the evidence because that determination had not
been made.
We are mindful that other courts have held that an employee, while
separated from work due to a layoff, may be discharged and
ineligible for unemployment compensation benefits. See, e.g.,
Quarto Mining Co. v. Adams (Dec. 21, 1998), Monroe App. No. 777,
unreported, 1998 WL 896430 (cause remanded to determine whether
discharge of employee during layoff was for just cause that would
terminate further benefits for claimant); Batavia Nursing &
Convalescent Inn v. Kidd (June 23, 1986), Clermont App. No.
CA85-12-113, unreported, 1986 WL 7121 (claimant discharged while on
layoff from work was not entitled to receive unemployment
compensation benefits).
The standard of review of an unemployment compensation case is
limited, and we believe that these courts have extended the scope
of review beyond examining whether the benefits determination was
lawful, reasonable, and in accord with the evidence.
The judgment of the common pleas court is reversed, and the
decision of the Ohio Unemployment Compensation Board of Review is
reinstated.
Judgment reversed.
SPELLACY, P.J., concurs.
MICHAEL J. CORRIGAN, J., concurs in judgment only.
DISPOSITION
Judgment reversed.