Unemployment Compensation Review Commission

Regina M. Parks, Appellant-Appellee,

vs.
 Health One, Appellee-Appellee, Administrator, Ohio Bureau
 of Employment Services, Appellee-Appellant
 No. 88AP-982
 COURT OF APPEALS OF OHIO, TENTH APPELLATE DISTRICT, FRANKLIN COUNTY
 1989 Ohio App. LEXIS 3118
 August 8, 1989, Decided

 


APPEAL from the
FranklinCountyCourt of Common Pleas.
 
COUNSEL
EVANS, ST. CLAIR & KELSEY, and MR. PAUL M. AUCOIN, for appellee Regina Parks.
BAKER & HOSTETLER, and MR. MICHAEL ASENSIO, for appellee Health One.
MR. ANTHONY J. CELEBREZZE, JR., Attorney General, and MS. SONYA M. JONES, for appellant.
 
JUDGES
YOUNG, J., STRAUSBAUGH and WHITESIDE, JJ., concur.
 
AUTHOR: YOUNG
 
OPINION
 
DECISION
YOUNG, J.
This matter is before this court upon the appeal of the Ohio Bureau of Employment Services (O.B.E.S.), appellant, from a judgment of the Franklin County Court of Common Pleas which remanded the cause to the Unemployment Compensation Board of Review ("board of review") for a determination of "just cause" pursuant to R.C. 4141.29(D)(2)(a) Appellee, Regina Parks ("Parks"), was employed as a physical therapist by appellee, Health One, from 1982 through June 1985. During that time, she became chief of the physical therapy department. She eventually resigned as the department chief, but remained in the department working as a physical therapist. On
June 7, 1985, Parks received a letter from her employer stating that she had been placed on a thirty-day probationary period due to her job performance. Shortly thereafter, she met with Dr. C.R. Block, the acting executive director, for an explanation as to why she had been placed on probationary status. Parks than consulted an attorney. The attorney contacted Dr. Block and was told that Health One intended to discharge Parks at the end of her probationary period. Thereafter, Parks sent a letter of resignation to Dr. Block.
 
In February 1986, Parks filed an application for unemployment compensation with O.B.E.S. The O.B.E.S. denied Parks' application for benefits upon the basis that she had quit her employment without just cause. Based on a timely appeal to the board of review, the administrative referee affirmed the denial of benefits to Parks. After exhausting all her administrative remedies, Parks filed an appeal to the Franklin County Court of Common Pleas. The trial court remanded the cause for a determination as to whether Parks quit her job for "just cause" pursuant to R C. 4141.29(D)(2)(a).
 
Appellant, O.B.E.S., now asserts the following two assignments of error:
"I. THE COURT BELOW ABUSED ITS DISCRETION BY REMANDING THE INSTANT CASE BACK FOR DETERMINATION AS TO WHETHER OR NOT THE APPELLEE COULD HAVE BEEN DISCHARGED FOR JUST CAUSE: THE STANDARD FOR DETERMINATION OF ENTITLEMENT TO UNEMPLOYMENT COMPENSATION BENEFITS UPON VOLUNTARY TERMINATION OF EMPLOYMENT IS JUST CAUSE TO QUIT.
 
"II. THE DECISION OF THE UNEMPLOYMENT COMPENSATION BOARD OF REVIEW WAS LAWFUL, REASONABLE AND SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE, WHERE EVIDENCE ESTABLISHED THAT THE APPELLEE QUIT HER JOB IN ANTICIPATION OF BEING DISCHARGED, PRIOR TO THE EXPIRATION OF A THIRTY DAY PROBATIONARY PERIOD TO IMPROVE HER PERFORMANCE."
 
In the first assignment of error, O.B.E.S. asserts that the trial court abused its discretion by ordering that the case be remanded to the board of review for a determination as to whether Parks quit her job for "just cause" pursuant to R.C. 4141.29(D)(2)(a) O.B.E.S. argues that the trial court was limited in its review to the extent that it could only make a determination as to whether the board of review abused its discretion. Furthermore, O.B.E.S. asserts that the trial court could only determine whether the decision of the board of review was lawful, reasonable, and supported by the manifest weight of the evidence, pursuant to R.C. 4141.28(O).
 
R.C. 4141.28(O) states, in pertinent part:
"* * * If the court finds that the decision was unlawful, unreasonable, or against the manifest weight of the evidence, it shall reverse and vacate such decision or it may modify such decision and enter final judgment in accordance with such modification; otherwise such court shall affirm such decision. * * *"
 
This statute provides to the court only three alternatives for disposing of an appeal from the O.B.E.S. board of review: the court of common pleas can either (1) affirm; (2) reverse and vacate; or (3) modify and enter final judgment. However, case law sets forth that the power to reverse and vacate decisions necessarily includes the power to remand the cause to the originating decision maker. Superior Metal Products v. Admr., Bur. of Employment Services (1975), 41
OhioSt.2d 143. Therefore, the remand effectuates the jurisdiction of the O.B.E.S. to conduct further proceedings and to render a new decision.
 
In the facts before this court, the trial court could not reach a decision whether to affirm or reverse the decision of the board of review since it made no decision regarding the evidence before it on the issue of "just cause." Thus, the issue was not one of "manifest weight of the evidence" but rather a failure of the board of review to make a specific finding regarding the issue of "just cause" based on the evidence before it. Accordingly, the trial court was vested with the power to remand the cause herein to the board of review for the purpose of resolving the issue of "just cause" and properly did so in the interest of justice so that ultimately, a fair and lawful decision could be reached. Appellant's first assignment of error is not well-taken and is overruled.
 
In the second assignment of error, O.B.E.S. asserts that the decision of the board of review is lawful and reasonable and supported by the manifest weight of the evidence. O.B.E.S. contends that it properly denied Parks unemployment compensation benefits on the basis that Parks quit her job in anticipation of being discharged and that the issue of whether a possible discharge would have been for "just cause" pursuant to R.C. 4141.29(D)(2)(a) was not applicable to the issues in this case. The facts before this court are uncontroverted that the only reason Parks quit her job was in anticipation of being discharged. The referee's findings of fact show that Parks quit her job only after her employer told her attorney that Health One intended to terminate her employment irrespective of her job performance throughout the remainder of her probationary period. Thus, the question remaining was whether the employer was justified in its decision to terminate Parks.
 
The referee's finding that Parks' resignation was without "just cause" seems to be predicated on the notion that Parks was required to work through to the end of her probationary, endure all the technicalities of termination, and go through all of the motions of being discharged from her employment. The referee also pointed out that the employer had the prerogative of changing its mind regarding Parks' termination during the remainder of the probationary period. However, this court is not aware of any requirement that an employee remain on the job, in a highly stressful situation, when a discharge from the employment is inevitable.
 
For unemployment compensation purposes, an employer who resigns in anticipation of being discharged must be judged by the same criteria as if the discharge had actually taken place. See Watters v. City of Upper Arlington (Mar. 16, 1982), Franklin App. No. 81AP-778, unreported (1982 Opinions 617). Thus, the issue as to whether Parks quit her job with or without just cause, as defined in R.C. 4141.29(D)(2)(a), has not yet been determined by the board of review even though the board had before it sufficient evidence on this issue to make an informed decision regarding Parks' request for benefits.
 
R.C. 4141.29(D)(2)(a) provides that an employee is not entitled to unemployment benefits if "[h]e quit his work without just cause or has been discharged for just cause in connection with his work. * * *" "Just cause" has been defined as "* * * '* * * that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act. '* * * Irvine v. Unemployment Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17, citing Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12. The board of review had evidence before it regarding the issue of whether Parks' inevitable discharge would have been based on "just cause," but did not make a determination on this specific issue. Thus, the issue which is unresolved is whether Parks' discharge would have been based on "just cause" within the meaning of the statutory language. Accordingly, this cause must necessarily be remanded to the board of review to make that determination and the trial court's order of remand was proper.
 
Based on the foregoing analysis, appellant's first and second assignments of error are not well-taken and are overruled. The judgment of the Franklin County Court of Common Pleas is affirmed.
 
DISPOSITION
 
Judgment affirmed.