SCHULTZ,
APPELLANT,
vs.
HERMAN'S FURNITURE, INC., ET AL.,
APPELLEES
No. E-76-30
COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT,
ERIE COUNTY
52 Ohio App.2d 161, 6 Ohio Op. 3d 159, 368 N.E.2d
1269
November 5, 1976, Decided
HEADNOTE
Unemployment compensation -- R. C. 4141.29 -- Discharge not for
just cause, when -- Absenteeism and tardiness resulting from
illness.
SYLLABUS
Absenteeism and tardiness caused by a bona fide illness reported to
an employer is not just cause, in connection with the work, for a
discharge.
COUNSEL
Mr. Ronald R. Smith, for appellant.
Mr. William J. Brown, attorney general, and Mr. Jerry Arthur
Jewett, for appellees.
JUDGES
POTTER, J. BROWN, P. J., concurs. WILEY, J., dissenting.
AUTHOR: POTTER
OPINION
{*161} The claimant, Diane Schultz, was employed as a salesperson
at Herman's Furniture, Inc., from October 19, 1973, to June 7,
1975, where she performed her work satisfactorily until March 1975.
In March, the claimant developed chronic gastritis and
cholecystitis. From April through June 1975, the claimant was
absent from work eleven times and tardy twelve times. Herman's
Furniture, Inc., discharged the claimant due to her absenteeism and
tardiness. The claimant claims her reported illness was responsible
for her absenteeism and tardiness and, therefore, was not a just
cause for discharge.
The Ohio Bureau of Employment Services denied the claimant
unemployment benefits. The claimant's request for reconsideration
was refused. An appeal filed by the claimant from that decision to
the board of review was also unsuccessful. The board of review
disallowed the {*162} claimant any further appeal. The claimant
filed an appeal with the Erie County Court of Common Pleas. The
Court of Common Pleas affirmed the board's decision.
The claimant's motion for reconsideration was not granted. This
appeal followed.
Appellant claims assignments of error as follows:
"1. The decision is not sustained by the evidence and is against
the manifest weight of the evidence.
"2. The decision is contrary to law."
The claimant's doctor filed three reports. In the first he answered
"no" to the following question: "While under your care was there a
time when this individual was not able to work?" On June 26, 1975,
the physician answered the same question in the following manner:
"Error was made on this section on last form. Patient has not been
on sick leave, but there were times that she could not work due to
her ailments stated above." On September 25, 1975, the doctor made
the following report: "This is to certify that this patient was
under my care from April 1, 1975 to April 30, 1975. She was unable
to work. Diag Gastritis et cholecystitis. James E. Green, D. O."
Claimant's evidence includes her doctor's reports and her
testimony. The appellees do not refute the fact that the claimant
was sick during the period in question.
The claimant was denied benefits pursuant to R. C. 4141.29, which
reads, in part:
"(D) Notwithstanding division (A) of this section, no individual
may serve a waiting period or be paid under the following
conditions: * * *
"(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 * * *."
In regard to initial eligibility for unemployment benefits,
absenteeism and tardiness caused by a bona fide illness reported to
an employer is not just cause in connection with the work, for a
discharge. See annotation, 41 A. L. R. 2d 1158, Section 9; 76
American Jurisprudence 2d 954, 955, {*163} Unemployment
Compensation, Section 58; Milwaukee Transformer Co. v. Indus. Comm.
(1964), 22 Wis. 2d 502, 126 N. W. 2d 6; Kelleher v. Unemployment
Comp. Bd. of Review (1954), 175 Pa. Super. 261, 104 A. 2d 171; Crib
Diaper Service v. Unemployment Comp. Bd. of Review (1953), 174 Pa.
Super. 71, 98 A. 2d 490.
In the case at bar, the claimant did notify Herman's Furniture that
she would be absent or tardy because of illness. Assignments of
error Nos. 1 and 2 are well taken.
We do not reach the issue of whether an employee, who because of
illness is not available for work or for the same reason withdraws
from the labor market, qualifies for unemployment benefits. See 54
Ohio Jurisprudence 2d 332, Unemployment Compensation, Section 45;
76 American Jurisprudence 2d 979, Unemployment Compensation,
Section 74; R. C. 4141.29(A).
On consideration whereof, the court finds substantial justice has
not been done the party complaining, and the judgment of the Erie
County Court of Common Pleas is reversed.
Judgment reversed.
DISPOSITION
Judgment reversed.
DISSENT
WILEY, J., dissenting.
Initially, it is submitted that the claimant's contention that her
illness caused her to be absent from work eleven times and late for
work twelve times within a three-month period preceding her
discharge is highly questionable. The nature of the claimed illness
itself, the ambiguous statements in the doctor's reports, and the
fact that the doctor saw the claimant on only two occasions, April
1st and April 15th, were facts to be considered by the referee in
making his decision.
The only diagnosis of illness made by the doctor was "gastritis et
cholecystitis." In Stedman's Medical Dictionary (2d lawyers ed.
1972), gastritis is defined as "inflammation of the stomach." A
wide range of various illnesses could be covered by such a broad
definition. Cholecystitis is defined simply as "inflammation of the
gall bladder."
{*164} On his original report the doctor stated in effect that
while the claimant was under his care there was not a time that she
was not able to work. He did correct this in a later report
indicating that he had made an error on the medical information
report on the Ohio Bureau of Employment Services form in that there
was a time when the individual was under his care when she was not
able to work, and the doctor further stated "patient has not been
on sick leave but there were times that she could not work due to
her ailments stated above," and the ailments stated above were
"probable chronic gastritis and cholecystitis." In a later medical
report, on September 25, 1975, submitted after the referee's
hearing, the doctor indicated that the patient was under his care
from April 1st, 1975 to April 30th, 1975. He wrote: "She was unable
to work. Diag gastritis et cholecystitis." The doctor does not
explain how he reached the opinion that she was unable to work, nor
does he state on what days she was unable to work. Furthermore, he
makes no statement that the illness was related in any way to the
repeated tardiness of the claimant. No medical report is made for
the entire month of May or June to the date of discharge; however,
claimant was absent from work May 20th, May 25th and 26th and June
6th. Moreover, the claimant was tardy on May 6th, May 21st and June
7th.
On a factual basis, the decision of the administrator concurred in
by the referee that the employee was discharged for just cause in
connection with the work is fully supported by the record. An
application to institute a further appeal was disallowed by the
board of review. On the appeal to the Court of Common Pleas, the
court stated that upon a consideration it found that "the decision
of the board of review was not unlawful, unreasonable, or against
the manifest weight of the evidence and said decision of the board
of review is affirmed. * * *"
Ordinarily, the Court of Appeals will not substitute its judgment
for that of the board of review (or referee) where there is some
substantial evidence to support the finding. See Fahl v. Board of
Review (1965), 2 Ohio App.2d 286, which reads, in part, as
follows:
{*165} " A Common Pleas Court may not substitute its judgment for
that of the Board of Review (or referee), Bureau of Employment
Compensation, on factual issues and may modify the board's decision
and enter final judgment only where the facts are not in dispute
and such undisputed facts constitute substantial, credible evidence
of probative value on the issues to be determined." (Paragraph one
of the syllabus.)
The majority opinion states: "absenteeism and tardiness caused by a
bona fide illness reported to an employer is not just cause, in
connection with the work, for a discharge." I find this statement
to be overly broad. The cases cited by the majority interpret
statutes which are worded differently from the Ohio statute. For
example, the statutes in Pennsylvania provide that an employee
shall be ineligible for compensation if his discharge is for "* * *
willful misconduct connected with his work * * *." Penn. Stat.
Anno. 43-802(2)(e); See, also, Wis. Stat. 108.04(5)(1953). In Ohio,
R. C. 4141.29(D)(2) provides, in part: "* * * or has been
discharged for just cause in connection with his work * * *."
In Kelleher v. Unemployment Comp. Bd. of Review (1954), 175 Pa.
Super. 261, 104 A. 2d 171, the court states, at page 172:
"Absence from work with good cause may justify an employer in
discharging an employee; but such absence does not amount to
willful misconduct. Crib Diaper Service v. Unemployment
Compensation Board of Review, 174 Pa. Super. 71, 98 A. 2d
490."
In Crib Diaper Service v. Unemployment Comp. Bd. of Review (1953),
174 Pa. Super. 71, 98 A. 2d 490, the following was held, in
paragraph three of the syllabus:
"In an unemployment compensation case, in which it appeared that
claimant had been frequently absent because of ill health; and that
she gave notice to her employer on the first day of her last
absence but failed to notify him of her illness on the second day;
it was Held that (1) claimant's absences because of illness were
with good cause and did not constitute willful misconduct; and
{*166} (2) claimant's failure to give notice also on the second day
of her last absence did not constitute willful misconduct."
These statements from cases cited in the majority opinion indicate
that the employer could have just cause for discharging the
employee because of illness. Although in Pennsylvania the employee
would be paid, in that such conduct would not constitute "willful
misconduct," under the Ohio statute it could be conduct permitting
a discharge "for just cause in connection with his work."
We find no reported cases in Ohio on the precise point of law
herein; however, attention is called to an unreported case wherein
a discharge was made because of excessive absences together with
numerous incidents of tardiness caused at least, in part, by
illness. Blevins v. Admr. and Western Electric Co., Inc., Court of
Appeals for Franklin County, No. 74 AP-434, decided February 11,
1975, cited in 8 CCH Unemploy. Ins. Reptr. p. 38,702, Ohio para.
8927.
In the case sub judice, the record does not disclose the size of
the business involved. It is respectfully submitted that the type
of operation, the number of employees, and the relative importance
of any single employee would be factors to be considered. For
example, in a small restaurant with only three or four employees,
the work record of the cook which indicated he was absent eleven
times and tardy twelve times in a period of twelve weeks, even
though undisputedly caused by illness, could probably be considered
by the employer as just cause for discharge.
Even if it were determined that the claimant herein was discharged
solely because of absenteeism and tardiness resulting from a bona
fide illness, the referee could have lawfully concluded that the
discharge was "for just cause." The decision of the Court of Common
Pleas affirming the decision of the board of review of the Ohio
Bureau of Employment Services should be affirmed.