
    Tzangas, Plakas & Mannos, Attorneys, Appellee, v. Administrator, Ohio Bureau of Employment Services, Appellant.
    [Cite as Tzangas, Plakas & Mannos v. Ohio Bur. of Emp. Serv. (1995), 73 Ohio St.3d 694.]
    (No. 94-564
    Submitted April 26, 1995
    Decided September 13, 1995.)
    
      
      Tzangas, Plakas & Mannos, Beth A. Raies and David L. Dingwell, for appellee.
    
      Betty D. Montgomery, Attorney General, James A. Barnes and Stefan J. Schmitt, Assistant Attorneys General, for appellant.
   Pfeifer, J.

In this case we resolve three issues: (1) the scope of an appellate court’s review of unemployment compensation cases, (2) whether an employee must be at fault in order for a termination to be made for just cause, and (3) whether unsuitability for required work constitutes fault sufficient to support a just cause termination. On the first issue, we find that appellate courts may reverse a board decision if it is unlawful, unreasonable or against the manifest weight of the evidence. On the second issue, we find that fault is required for a termination to be made with just cause. Finally, unsuitability for a position constitutes fault sufficient to support a just cause termination.

I

In Irvine v. Unemp. Comp. Bd. of Review (1985), 19 Ohio St.3d 15, 17-18, 19 OBR 12, 15, 482 N.E.2d 587, 590, this court held that reviewing courts may reverse “just cause” determinations “if they are unlawful, unreasonable, or against the manifest weight of the evidence.” This court noted that while appellate courts are not permitted to make factual findings or to determine the credibility of witnesses, they do have the duty to determine whether the board’s decision is supported by the evidence in the record. Id. at 18, 19 OBR at 15, 482 N.E.2d at 590. This duty is shared by all reviewing courts, from the first level of review in the common pleas court, through the final appeal in this court.

Former R.C. 4141.28(0), now renumbered R.C. 4141.28(0)(1), the statute setting forth the appeals process for unemployment compensation cases, does not create distinctions between the scope of review of common pleas courts and appellate courts. To apply the same standard at each appellate level does not result in a de novo review standard. As this court stated in Irvine, “[t]he fact that reasonable minds might reach different conclusions is not a basis for the reversal of the board’s decision.” Irvine at 18, 19 OBR at 15, 482 N.E.2d at 590. The board’s role as factfinder is intact; a reviewing court may reverse the board’s determination only if it is unlawful, unreasonable, or against the manifest weight of the evidence.

II

To be eligible for unemployment compensation benefits in Ohio, claimants must satisfy the criteria established pursuant to R.C. 4141.29(D)(2)(a), which provides:

“(D) * * * [No] individual 'may * * * 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 * *

In Irvine, supra, this court stated that “ ‘[traditionally, just cause, in the statutory sense, is that which, to an ordinarily intelligent person, is a justifiable reason for doing or not doing a particular act.’ ” Irvine at 17, 19 OBR at 14, 482 N.E.2d at 589, citing Peyton v. Sun T.V. (1975), 44 Ohio App.2d 10, 12, 73 O.O.2d 8, 9, 335 N.E.2d 751, 752. Just cause determinations in the unemployment compensation context, however, also must be consistent with the legislative purpose underlying the Unemployment Compensation Act. The Act exists “ ‘to enable unfortunate employees, who become and remain involuntarily unemployed by adverse business and industrial conditions, to subsist on a reasonably decent level and is in keeping with the humanitarian and enlightened concepts of this modem day.’ ” (Emphasis sic.) Irvine at 17, 19 OBR at 14, 482 N.E.2d at 589, citing Leach v. Republic Steel Corp. (1964), 176 Ohio St. 221, 223, 27 O.O.2d 122, 123, 199 N.E.2d 3, 5. “ ‘The [A]ct was intended to provide financial assistance to an individual who had worked, was able and willing to work, but was temporarily without employment through no fault or agreement of his own.’ ” Irvine at 17, 19 OBR at 14, 482 N.E.2d at 589, citing Salzl v. Gibson Greeting Cards (1980), 61 Ohio St.2d 35, 39, 15 O.O.3d 49, 52, 399 N.E.2d 76, 79. Thus, while a termination based upon an employer’s economic necessity may be justifiable, it is not a just cause termination when viewed through the lens of the legislative purpose of the Act.

The Act does not exist to protect employees from themselves, but to protect them from economic forces over which they have no control. When an employee is at fault, he is no longer the victim of fortune’s whims, but is instead directly responsible for his own predicament. Fault on the employee’s part separates him from the Act’s intent and the Act’s protection. Thus, fault is essential to the unique chemistry of a just cause termination.

While this court did hold in Irvine that “[t]he determination of whether just cause exists necessarily depends upon the unique factual considerations of the particular case,” Irvine at 17, 19 OBR at 15, 482 N.E.2d at 590, that does not compel the appellate court’s abandonment of fault-based just cause analysis in favor of a “totality of the circumstances” examination. Instead, Irvine recognizes that the question of fault cannot be rigidly defined, but, rather, can only be evaluated upon consideration of the particular facts of each case. If an employer has been reasonable in finding fault on behalf of an employee, then the employer may terminate the employee with just cause. Fault on behalf of the employee remains an essential component of a just cause termination.

Ill

In this case, the question is whether Hammad’s unsuitability to perform the work required by the firm constituted fault for which the firm may have discharged her for just cause. The common pleas court held that an employee satisfies the fault requirement only upon a “willfid or heedless disregard of duty or violation of [employer] instructions.” To rule that way is to ignore that ability is relevant in the workplace. There is little practical difference between an employee who will not perform her job correctly and one who cannot perform her job correctly. In either case, the performance of the employee is deficient. That deficiency, which does not result from any outside economic factor, constitutes fault on the employee’s behalf.

To find that an employee is entitled to unemployment compensation when she is terminated for her inability to perform the job for which she was hired would discourage employers from taking a chance on an unproven worker. Most employees need an employer to take a leap of faith when initially hiring them. An employer relies upon an employee’s representations that she can adequately perform the required work. Likewise, an employee relies upon an employer’s description of what the job will entail. The party that fails to live up to those expectations is at fault.

Unsuitability for a position constitutes fault sufficient to support a just cause termination. An employer may properly find an employee unsuitable for the required work, and thus to be at fault, when: (1) the employee does not perform the required work, (2) the employer made known its expectations of the employee at the time of hiring, (3) the expectations were reasonable, and (4) the requirements of the job did not change since the date of the original hiring for that particular position.

In this case, there is no dispute that Hammad continually made serious typing and proofreading errors requiring duplicative efforts by her and by attorneys at the firm. At every level in this case, Hammad was found to be unsuitable for the required work. The record establishes that the firm made reasonable efforts to avoid terminating Hammad, including verbal reprimands and warnings that she would be discharged unless her performance improved. Second, Hammad never claimed that she was unaware of the requirements of her job or of the demanding performance expected of her as a normal part of her employment. Third, testimony at the board hearing shows that a word processor hired at the same time as Hammad had fulfilled the firm’s expectations and continued to be employed by the firm, demonstrating the reasonableness of the job’s requirements. Finally, Hammad was not the victim of downsizing at the firm, nor was her original job description changed to a position different from the one she originally accepted.

That Hammad wished to perform better cannot obviate the plain fact that she could not fulfill the minimum standards the firm required of her. She was simply terminated because she could not do the required work. While that may not be her fault in a moral sense, it does constitute fault in a legal sense sufficient for her termination to have been made with just cause.

For the foregoing reasons, the judgment of the court of appeals is affirmed.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick and F.E. Sweeney, JJ., concur.

Wright and Cook, JJ., separately concur.

Wright, J.,

concurring. I concur in paragraphs one, two, and three of the syllabus and the judgment only.

Cook, J., concurs in the foregoing concurring opinion.  