Unemployment Compensation Review Commission

HARRIS, APPELLEE,

vs.
 ADMINISTRATOR, OHIO BUREAU OF EMPLOYMENT SERVICES, ET AL.,
 APPELLANTS. ARNOTO, APPELLEE, v. ADMINISTRATOR, OHIO
 BUREAU OF EMPLOYMENT SERVICES, ET AL.,
 APPELLANTS
 Nos. 88-2030, 88-2031
 SUPREME COURT OF OHIO
 51 Ohio St.3d 37, 553 N.E.2d 1350, 1990 Ohio LEXIS 207
 May 9, 1990, Decided

 


APPEAL from the Court of Appeals for Trumbull County, No. 3899. APPEAL from the Court of Appeals for Mahoning County, No. 87 C.A. 80.
 
HEADNOTE
Unemployment compensation -- Employee discharged for just cause is disqualified from receiving unemployment compensation -- R.C. 4141.29(D)(2)(a) -- Employer justified in terminating employee whose alcoholic condition may be characterized as involuntary, when -- Employee fails to take reasonable steps to prevent his drinking problem from affecting his job performance.
 
STATEMENT OF THE CASE
 
Case No. 88-2030
 
Appellee, Lotus J. Harris, was employed as a salesperson for Warren Music Centre between June 7, 1984 and May 13, 1985. On November 6 or 7, 1984, Martin Petersime, the owner of Warren Music, confronted Harris concerning her apparent problem with alcohol abuse. According to Petersime, he had been receiving complaints from Harris's co-workers that Harris had been working while intoxicated. He stated that Harris had been reporting late to work and had been leaving work for extended periods of time without permission. According to Petersime, when he confronted Harris, she admitted that she was an alcoholic. Petersime testified that he encouraged Harris to seek treatment for her alcohol problem and offered to give her time off for that purpose on several occasions.
On November 8, 1984, Petersime issued a letter to Harris which stated in relevant part:
 
"Pursuant to our conversation of last week, I am informing you of my decision to place you on a six-week probation effective today.
 
"This action is taken in response to your following actions which are contrary to the nature of our contract:
 
"A. Repeated lateness arriving for work.
 
"B. Intoxication on the job.
 
"C. Leaving work without permission for extended periods of time."
 
On March 30, 1985, Petersime again discussed Harris's drinking problem with her as part of her performance evaluation. On a written evaluation that was shown to Harris, Petersime specifically noted that alcohol was still a problem.
 
On April 16, 1985, a customer informed Petersime that Harris was drunk while running a booth for Warren Music at a special show in a shopping mall. When confronted about the customer's complaint, Harris claimed that a low blood-sugar problem accounted for her behavior at the mall. Harris stated that she was under a doctor's care for the low blood-sugar condition and that her doctor wanted her hospitalized for it. In response, Petersime told Harris that she "had better find out what was wrong," and encouraged her to obtain hospitalization. Harris was in fact subsequently hospitalized for glucose intolerance, anxiety, depression and hypertension.
 
On May 13, 1985, Harris received permission from Petersime to leave work for one hour to go to the bank. Approximately an hour later, Harris returned to work intoxicated but later departed without permission. Upon learning that Harris had returned to work intoxicated and had left without permission, Petersime decided to discharge Harris and wrote her a letter of termination.
 
Later that evening, Harris was admitted to a hospital where she underwent a three-day detoxification program followed by a twenty-eight day alcoholism rehabilitation program. She was released on June 13, 1985.
Subsequently, Harris applied for unemployment compensation. On June 26, 1985, the appellant, Administrator of the Ohio Bureau of Employment Services, determined that Harris had been discharged by her employer for just cause, and was therefore not qualified to receive unemployment compensation benefits.
 
On July 9, 1985, Harris filed a timely request for reconsideration with the appellant. The appellant referred the request to the Unemployment Compensation Board of Review to be considered as an appeal. After a hearing before a referee of the board, the referee decided that Harris had been discharged for just cause, and her claim for benefits was disallowed.
 
Upon appeal, the Trumbull County Court of Common Pleas affirmed the decision of the board.
 
Upon further appeal, the court of appeals reversed, stating that while the employer was justified in discharging Harris due to poor job performance, Harris was not at fault for her job violations due to her alcoholism. The appellate court held that Harris should receive benefits for periods during which she could demonstrate that she was "able and available for work."
 
Case No. 88-2031
 
Appellee, Paul T. Arnoto, was employed as a packer for Easco Aluminum Corporation between September 27, 1978 and January 19, 1982.
 
On May 13, 1981, Arnoto was given a three-day suspension for returning late from lunch and for leaving the plant without permission or without punching out. Arnoto was warned that his next offense could result in his termination.
In August 1981, Arnoto was discharged by Easco for insubordination. However, the discharge was reduced to a four-week suspension.
 
On January 19, 1982, Arnoto was scheduled to work from 3:30 p.m. to midnight. Under Easco's company policy, employees on that shift were required to take their lunch breaks from 8:30 to 9:00 p.m. Arnoto left for lunch that day at 8:30 p.m. and traveled to a local tavern. However, he did not return to work until 9:10 p.m. When confronted by his supervisor, who noticed that Arnoto was having trouble walking and talking, and detected the odor of alcohol about Arnoto, Arnoto admitted to having consumed three shots of whiskey and four beers during his lunch time. As a result of this incident, and in light of his prior disciplinary record, Arnoto was discharged by Easco.
At the time of his discharge, Arnoto was thirty-one years old. He had been an alcoholic and drug addict since he was a teenager, and had been addicted to a wide variety of drugs, including Valium, other sedatives, and hallucinogenic drugs. In 1980 or 1981, according to Arnoto, he had been informed by union representatives that Easco believed he had an alcohol or drug problem. The union admonished Arnoto to follow his employer's rules concerning these substances.
 
On January 30, 1982, Arnoto was admitted to an alcoholism treatment program. Arnoto was treated in this program until March 4, 1982, at which time he was released. His alcoholism counselor stated that since his release, Arnoto had remained sober.
 
Arnoto then applied for unemployment compensation benefits. On March 25, 1982, the appellant-administrator disallowed Arnoto's claim on the ground that he had been discharged for just cause.
 
Upon appeal to the Unemployment Compensation Board of Review, the denial of benefits was affirmed based on Arnoto's violation of his employer's policies relating to tardiness and intoxication. Upon further appeal, the Mahoning County Court of Common Pleas also affirmed the denial of unemployment compensation. Then, upon appeal to the court of appeals, the lower court decision was reversed and the cause was remanded to the board of review for a determination of whether Arnoto's alcoholism was the reason he violated his employer's policies on tardiness and intoxication.
 
On remand, a hearing was held before a referee of the board, whereupon the board affirmed its previous decision and held that Arnoto had been discharged by Easco for just cause. Upon Arnoto's appeal to the court of common pleas, the board's decision was reversed and remanded, thereby granting unemployment compensation benefits to Arnoto.
 
Upon appeal, the court of appeals affirmed the decision to award Arnoto unemployment benefits in a split decision. The appellate court held that while the employer was justified in discharging Arnoto for his violations of company policies, Arnoto was not at fault for violating such policies due to his alcoholic condition. The court of appeals observed that Arnoto could collect benefits only if he could demonstrate that his condition was under control. The appellate court then remanded the cause to the board of review to determine if and when Arnoto was in control of his alcoholism so as to be considered "able and available for work" under R.C. 4141.29(A)(4)(9).
The dissenting appellate judge opined that while there was substantial proof of Arnoto's alcoholism at the time of his discharge, there was no evidence that he had ever sought help for his condition before his discharge. The dissent concluded that the "employer should not be required to furnish security under such circumstances."
The causes are now before this court pursuant to the allowance of motions to certify the record in both appeals.
 
COUNSEL
Northeast Ohio Legal Services, Cherie H. Howard and Pat Booher Rosenthal, for appellees.
Anthony J. Celebrezze, Jr., attorney general, Sherrie J. Passmore and James John Schubert, for appellant administrator.
Anne M. Wilhelm and Walter J. Mackey, urging reversal for amicus curiae, Ohio Manufacturers' Association.
 
JUDGES
Moyer, C.J., Sweeney, Holmes, Douglas, Wright, H. Brown and Resnick, JJ., concur.
 
AUTHOR: PER CURIAM
 
OPINION
{*40} The determinative issue posed in these consolidated appeals is whether the alcoholism of appellees and its ultimate effect on their respective terminations from employment compel a finding that they were not discharged for "just cause" within the meaning of R.C. 4141.29(D)(2)(a). [FN1] Under the facts and circumstances of these cases, we find that in spite of appellees' alcoholism, both were dismissed from their jobs for just cause, so we therefore reverse the decisions of the courts of appeals below.
 
In the instant cases, both of the courts of appeals were of the opinion that except for the fact that the employees were alcoholics, the employer was otherwise justified in discharging the employee in issue. Nevertheless, the appellate courts focused upon the fact that the employees' conduct which led to their dismissals was so affected by their alcoholism that their alcohol-induced conduct should be considered to be involuntary. Both appellate courts relied on this court's decision in Hazlett v. Martin Chevrolet, Inc. (1986), 25 Ohio St.3d 279, 25 OBR 331, 496 N.E.2d 478, wherein alcoholism was found to be a handicap with respect to civil rights statutes, and interpreted the case to mean that alcoholism did not necessarily foreclose a discharged employee from qualifying for unemployment compensation benefits.
 
In our view, the courts of appeals read more into Hazlett, supra, than was intended by this court. As we stated in Hazlett, albeit in dicta, "[w]here chemical dependency adversely affects job performance an employer is clearly within its rights to discharge the employee." Id. at 281, 25 OBR at 333, 496 N.E.2d at 480. Thus, although alcoholism is considered to be a handicap, the adverse effects that alcohol has on a person's job performance will permit an employer to discharge an employee for just cause, and thereby prevent the employee from obtaining unemployment compensation benefits.
 
In our view, the record is replete {*41} with instances illustrating the just cause underlying the discharge of both appellees from their respective employment situations. In Harris's case, there was evidence that she was aware of her alcoholism and admitted it to her employer when confronted about it. In addition, Harris knew she was in danger of losing her job because of her drinking problem, and she had been placed on probation by her employer for poor job performance that was attributable to her drinking problem. Harris's employer encouraged her to seek treatment on several occasions and offered her time off in order to obtain help. However, Harris did not seek treatment for her alcoholism until she was discharged from her employment. In short, Harris's employer did much to warn her about her tenuous employment status and tried to help her through her alcohol addiction. Since his warnings and assistance were essentially ignored, Harris's employer was amply justified in terminating her employment based on her poor job performance.
 
With regard to Arnoto, we find that his employer was also justified in terminating his employment. While Arnoto may have refused to directly acknowledge that he was an alcoholic, he knew his drinking was adversely affecting his work and he knew his job was in jeopardy. Arnoto testified that he had missed work between twenty-five and thirty times due to hangovers during his employment at Easco. In 1980 or 1981, Arnoto was warned by his union that he was considered to be an alcohol and drug abuser. In addition, the record indicates that Easco disciplined Arnoto twice before firing him. Thus, Arnoto's employer was sufficiently justified in discharging him for breaking the company's policies on drunkenness and tardiness.
 
In our view, while appellees' condition as alcoholics may be characterized as involuntary, both of them failed to take reasonable steps to prevent their disability from affecting their job performance and, therefore, both employers were justified in terminating the appellees from their respective jobs. Since under R.C. 4141.29(D)(2)(a) an employee who is discharged for just cause is disqualified from receiving unemployment compensation, the courts below erred in creating an exception to this statute which would grant appellees the opportunity to qualify for unemployment compensation benefits.
 
Accordingly, the judgments of the courts of appeals below are reversed, and the decisions of the Unemployment Compensation Board of Review are hereby reinstated.
 
Judgments reversed.
 
DISPOSITION
 
Judgments reversed.
 
OPINION FOOTNOTES
1 R.C. 4141.29 provides in relevant part:
"(D) * * * [N]o individual may serve a waiting period or be paid benefits * * *:
"* * *
"(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 * * *."