Schultz v. Herman's Furniture, Inc. , 52 Ohio App. 2d 161 ( 1976 )

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 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, Unemployment Compensation, Section 58; Milwaukee TransformerCo. 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.

BROWN, P. J., concurs.