Summary
In Shannon v. Bureau of Unemployment Compensation, 155 Ohio St. 53, 97 N.E.2d 425, in the absence of a statutory provision relating thereto, the court held that the burden of proof is upon the claimant to establish the right to unemployment compensation and also that the phrase, "available for work," as used in the statute implies some obligation on the part of the claimant to make reasonable effort to obtain work.
Summary of this case from Adamski v. B.U.COpinion
No. 32195
Decided March 7, 1951.
Unemployment compensation — Right to benefits — Burden on claimant to establish — Claimant "available for work," when — Must prove effort to find employment — Merely registering and reporting to state employment agency not sufficient — Section 1345-6, General Code.
1. The burden of proof is upon the claimant to establish the right to unemployment benefits under the unemployment compensation law of Ohio.
2. Mere registration of a claimant with a state employment agency and reporting weekly to such agency do not establish such claimant as "available for work" under Section 1345-6, General Code, as that section was worded prior to the amendment thereof which was effective October 18, 1949.
3. In order to so qualify the claimant must prove reasonable effort to find suitable employment in addition to such registration and reporting.
APPEAL from the Court of Appeals for Mahoning county.
Plaintiff, Geneva Shannon, appellee herein, filed a claim for benefits with the Bureau of Unemployment Compensation. The claim was denied by the administrator, reconsidered, and again denied. Upon appeal to the referee her claim was disallowed for the reason that she, the claimant, was not available for work at the time of filing her claim. The Board of Review affirmed the decision of the referee in a two to one decision.
Upon appeal to the Common Pleas Court the decision of the Board of Review was reversed.
The Court of Appeals affirmed the judgment of the Common Pleas Court.
The cause is before this court upon the allowance of a motion to certify the record.
The present claim of plaintiff was filed on July 8, 1946, covering the week beginning with June 30, 1946. A previous claim had been paid to her. It totaled $288 and covered 18 weeks at $16 per week ending November 17, 1945. It followed the termination of her employment as a riveter and welder at Truscon Steel, which termination occurred in July 1945.
Her first benefit year, during which that claim was paid, expired June 29, 1946. Therefore, the present claim could not cover a period beginning earlier than June 30, 1946.
Had the present claim been filed for a period beginning on any day later than June 30, 1946, the claimant's base period would have been moved forward one quarter so as to eliminate the first quarter of 1945. With that quarter eliminated her earnings in the base period would have been insufficient to support a claim. Consequently, this claim, to be effective, had to be, and was, filed for a period beginning June 30, 1946.
On or about April 23, 1946, claimant (plaintiff) was employed at Isaly Dairy Company in Youngstown as a bus girl and dishwasher which employment she quit on April 27, 1946, stating that the work was too heavy for her and that she was advised by her doctor to quit. She had also worked one day with Workingmen's Overall Supply Company at some unidentified time prior to the Isaly Dairy Company employment. The claimant had no other employment after leaving Truscon Steel early in July 1945.
At the time of filing this claim on July 8, 1946, the claimant registered at the office of the Ohio State Employment Service and reported at that office each week thereafter for 22 weeks. The record shows no effort on the part of the claimant to procure employment during this period of registration other than the required weekly visit to that office and one conversation which claimant testified she had with a friend named Diehl who was employed in some unidentified capacity in the local United States Employment Service office.
Mr. A.L. Johnson, for appellee.
Mr. Herbert S. Duffy, attorney general, Mr. James B. Dooley and Mr. John A. Robenalt, for appellant.
The question to be decided by this court is whether upon this record the claimant satisfied the requirements of Section 1345-6, General Code (121 Ohio Laws, 348), as that section appeared at that time. That section provided that no individual shall be entitled to any benefits unless he or she
"(3) has registered at an employment office or other registration place maintained or designated by the administrator, or has otherwise notified the Bureau of Unemployment Compensation of his unemployment, in accordance with its rules respecting notification, as frequently and in such manner as the administrator may prescribe;
"(4) is able to work and available for work in his usual trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and
"(5) is unable to obtain work in his usual trade or occupation or any other employment for which he is reasonably fitted including employments not subject to this act."
It is conceded that the claimant satisfied the registration requirement. The trial court and the Court of Appeals held, contrary to the decision of the Board of Review of the Bureau of Unemployment Compensation, that the claimant was available for work inasmuch as she had registered as required and had made weekly visits to the employment office.
The question is, therefore, Is a claimant for unemployment compensation required to do more than register and report weekly at the employment office in order to be "available for work" as required in the above-quoted sections of the General Code?
The Court of Appeals cited and relied upon two previous decisions of this court, namely, Leonard v. Unemployment Compensation Board of Review, 148 Ohio St. 419, 75 N.E.2d 567, and Hinkle v. Lennox Furnace Co., 150 Ohio St. 471, 83 N.E.2d 521. Without intending to overrule either of those previous decisions we disagree with the conclusion of the Court of Appeals so far as that court considered those decisions as determining the issue involved in this case. We reaffirm the statement made in paragraph one of the syllabus in the Leonard case that "no hard and fast rule as to what constitutes availability for work can be adopted. Availability under the act depends in part on the facts and circumstances in each case * * *."
The facts and circumstances in the Hinkle and the Leonard cases were different from those involved in the present case and the narrow issue of the present case was not present in either of those earlier cases. We believe that the word "available" as used in the statute implies something more than willingness to accept a job if one is offered. This belief is strengthened by the language used in subsection 5 which requires that the claimant be "unable to obtain work." This language certainly implies some obligation on the part of the claimant to make reasonable effort to obtain work. In the absence of such reasonable effort the claimant is not "available." In our judgment the General Assembly did not contemplate that the job should seek the man and it was not the purpose of the General Assembly to provide vacations with pay. The registered claimant should not be absolved from all duty to help himself and to make reasonable effort to procure employment merely because the state of Ohio maintains an employment office and makes the services of that office available to those out of employment to assist them in finding jobs. The efforts of the employment office are intended to supplement and not to entirely supplant the individual's efforts.
It is significant that, as of October 18, 1949, the General Assembly amended subsection 4 to read:
"(4) is able to work and available for suitable work and is actively seeking such work, either at a locality in which he has earned wages * * *." (Italics supplied.)
If the present case had arisen after the amendment of the statute, it could not have been argued that registration alone qualified the claimant as being available. This amendment, we believe, merely clarifies and does not change the meaning of the word "available" as it appeared in the statute previous to the amendment.
The courts of other states have construed similar statutes in harmony with the construction here announced, including the following:
"Registration for work under the act, alone, is not sufficient to show a prima facie right to the benefits of the act." Hunter v. Miller, Commr. (1947), 148 Neb. 402, 27 N.W.2d 638.
"An unemployed individual is eligible to receive benefits only if it appears that the required conditions have been met and the burden is upon him to show that those conditions exist. * * *
"Registration for work and reporting at an employment office in accordance with regulations is but one of several findings, among which are the further findings that claimant is able to work and that he is available for work. * * *
"A hard and fast rule as to what constitutes availability for work cannot be laid down. It depends upon the facts and circumstances of each case.
"We think, however, that a claimant in order to show that he was `available for work' during the time for which he seeks benefits must at least show that he acted in good faith and made a reasonable effort to secure suitable employment of a character which he is qualified to perform by past experience or training." Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496.
"The act requires of a claimant thereunder something more than merely informing the department that he or she is out of work and therefore claims unemployment compensation. It requires the individual to make an active and reasonable effort to secure suitable employment. Were this not a requirement and were its mandate not obeyed, it is easy to see how the funds created by the Unemployment Compensation Act would soon disappear, like chaff before the wind, leaving no protection to those who are rightfully entitled thereto by reason of their enforced unemployment." Jacobs v. Office of Unemployment Compensation and Placement, 27 Wn.2d 641, 179 P.2d 707. See, also, Huiet, Commr., v. Schwob Mfg. Co., 196 Ga. 855, 27 S.E.2d 743.
The burden of proof to establish a claimant's right to benefits under the unemployment compensation law rests upon the claimant.
The claimant must act in good faith and make reasonable effort to find suitable employment. Mere registration and weekly reporting, without such reasonable effort, does not satisfy the requirement of the statute in question and does not make the claimant "available" as that word was used in that statute. The record herein does not reveal reasonable effort on the part of this claimant to find work. We agree with the Board of Review, the referee and the administrator that the claimant did not establish that she was "available for work" as required and that she is not entitled to unemployment compensation.
The judgment of the Court of Appeals is reversed and final judgment rendered for appellant.
Judgment reversed.
WEYGANDT, C.J., STEWART, TAFT and MATTHIAS, JJ., concur.
ZIMMERMAN and HART, JJ., dissent.
In my opinion the claimant herein presented sufficient evidence to support the determination by both the Court of Common Pleas and the Court of Appeals that she was available for work and willing to accept employment for which she was reasonably fitted, within the meaning and intent of Section 1345-6, General Code (121 Ohio Laws, 348), which was the statutory enactment applicable to the instant case.
The judgments below are in accord with the pronouncements of this court in Leonard v. Unemployment Compensation Board of Review, 148 Ohio St. 419, 75 N.E.2d 657, and it seems to me that the effect of the majority opinion is to place in the controlling statute language which the General Assembly omitted.
Section 1345-33, General Code, enjoins a liberal construction of the Unemployment Compensation Act.
HART, J., concurs in the foregoing dissenting opinion.