The Sixth District affirms a UCRC decision granting unemployment benefits to an individual accused of violating a cellphone policy, where the hearing officer gave more credibility to the claimant's testimony during the hearing than to hearsay statements relied upon by the employer.

Midwest Terminals of Toledo International, Inc. v. Ohio Dept. of Job & Family Servs., 2016 Ohio 973 (6th Dist.).

http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2016/2016-Ohio-973.pdf

March 11, 2016

Russell was both an employee and union representative at an employer that prohibited cellphone use, but did allow union reps to use cellphones briefly for union work as long as it did not interfere with work. He had received prior warnings regarding cellphone use. On August 23, 2014 a spill occurred while loading a ship and another employee reported that Russell was, "on his phone and appeared to be texting and had his back turned to the loading cargo spilled onto the deck waist deep." The employer ultimately terminated him.

During the unemployment appeal process, a hearing was conducted during which Russell denied the allegations and explained that the ship had moved during the loading, resulting in the spill. The Employer presented no witness with personal knowledge of Russell being on the phone while this occurred. The Hearing Officer gave greater weight to Russell's sworn testimony than to hearsay presented by the employer and found his termination to be without just cause.

The Employer appealed this decision to Lucas County Court of Common Pleas, which affirmed the Hearing Officer's decision. The Common Please Court reviewed that UCRC decisions must be upheld as long as they are not unlawful, unreasonable, or against the manifest weight of the evidence. It observed that, "Courts have held that 'to give credibility to the written statements of a person not subject to cross-examination because he did not appear at the hearing and to deny credibility to the claimant testifying in person makes a mockery of any concept of a fair hearing.'" It ultimately affirmed the Hearing Officer's decision.

The Sixth District issued a brief decision, holding:

We find that the June 19, 2015 opinion and judgment entry of the trial court is an appropriate and lawfully correct discussion of the facts and law involved in this administrative appeal. We therefore adopt the trial court's opinion and judgment entry (see Appendix A) and find appellant's assignment of error not well-taken.

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