Tanner v. Golden

Deen, Presiding Judge.

In August 1987, Rena Golden and Martha Nelson were both terminated from their positions as school teachers by the Muscogee County School District for their inability to pass the Teacher Certification Test (TCT) required under the Quality Basic Education Act. Golden had been employed for 7 years as a speech therapist, and took and failed the TCT 5 times between May 1986 and August 1987. Nelson had been employed for over 10 years as a special education teacher, and took and failed the TCT 3 times during the same period; she finally passed the test in December 1987 and was rehired by the school district. Neither Golden nor Nelson used staff development services made available to assist teachers in preparing for the test, but both did use various study aids and materials available.

Both Golden and Nelson were awarded unemployment compensation benefits by the initial claims examiner with the Department of Labor, but following an administrative appeal by the school district benefits were denied. In both cases, however, the superior court reversed the Board of Review of the Department of Labor and found Golden and Nelson entitled to benefits. This court then granted these discretionary appeals, consolidated because both involve the identical issue of whether failure of the TCT could constitute valid cause for disqualification of unemployment compensation benefits. Held:

Under OCGA § 34-8-158 (2), an individual may be disqualified for unemployment compensation benefits where the individual has been discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which he was employed . . .” Before such disqualification is appropriate, the employer must show that the discharge was caused by the deliberate, conscious fault of the claimant. Millen v. Caldwell, 253 Ga. 112 (317 SE2d 818) (1984); Roberson v. Tanner, 174 Ga. App. 128 (329 SE2d 210) (1985). In both cases here, the appellant contends that Golden’s and Nelson’s failure of the TCT, which barred their employment as school teachers, must be regarded as the deliberate and conscious fault of the claimants, because they did not take the TCT all of the times the test was offered before the termination of their employment and because they did not participate in certain staff development services available to assist teachers in preparing for the test. However, where it is undisputed that each claimant did take the test several times and utilized other study aids, the only possible conclusion is that the claimants’ efforts to pass the TCT were bona fide. Under these circumstances, their failure of the TCT would not constitute the conscious, deliberate fault necessary to disqualify them for unemployment compensation benefits.

Judgments affirmed.

Sognier, J., concurs. Carley, C. J., concurs specially.