Roberson v. Tanner

• Citation: 174 Ga.App. 128,329 S.E.2d 210
• Decision Date: 05 March 1985
• Docket Number: No. 69609,69609
• Parties: ROBERSON v. TANNER et al.
• Court: United States Court of Appeals (Georgia)

Page 210

329 S.E.2d 210

174 Ga.App. 128

ROBERSON v. TANNER et al.

No. 69609.

Court of Appeals of Georgia.

March 5, 1985.

Rehearing Denied March 22, 1985.

Kenneth G. Levin, Atlanta, Hugh H. Lowery, for appellant.

Michael J. Bowers, Atty. Gen., Marion O. Gordon, First Asst. Atty. Gen., Susan L. Rutherford, Staff Asst. Atty. Gen., Atlanta, James E. Humes II, Columbus, Rita J. Llop, Atlanta, for appellee.

DEEN, Presiding Judge.

The appellant, Tony Roberson, lived in Atlanta, Georgia, when he was hired by Bickerstaff Clay Products Company (Bickerstaff) in Smyrna, Georgia. At the time of his hiring, Roberson was told that he would have to provide his own transportation to get to the job. He began working for Bickerstaff on May 10, 1983, and continued to work through the following two days. On his way home from work on May 12, 1983, Roberson was involved in an automobile collision, which was the fault of the driver of the other vehicle, and his automobile was rendered undriveable.

The next morning Roberson informed Bickerstaff that he was going to have trouble getting to work. He made considerable but unavailing efforts to arrange suitable transportation. (Public transportation did not serve the location of the employer.) Roberson also asked Bickerstaff whether it would be possible to share a ride with another employee who lived near him or near a location served by public transportation, but the employer knew of no such employee. On Roberson's third day of absence, Bickerstaff advised him that the job could not be held open any longer; Roberson could not convince the employer to wait until his insurer repaired or replaced his automobile.

Roberson's application for unemployment compensation benefits was denied on the ground that he was disqualified by virtue of his having quit his job without justification. On administrative appeal, the hearing officer found that Roberson had instead been discharged; nevertheless, the hearing officer found that the discharge required disqualification from benefits for a period of five weeks. In the hearing officer's words: "The claimant, like all employees, has the responsibility of arranging his own transportation to and from the job. The claimant's failure to arrange this [transportation] must be considered his own fault, and the employer cannot be faulted for not holding the job open after he had been absent three of four days."

On appeal to the Board of Review of the Employment Security Agency, the hearing officer's ruling was affirmed by a vote of 2 to 1, and the superior court affirmed the decision of the board of review. This discretionary appeal followed. Held:

OCGA § 34-8-158(2) provides that an individual shall be disqualified for unemployment compensation for not less than 4 weeks and not more than 11 weeks if "he has been discharged or suspended from work with his most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which he was employed." Unless there is "fault" chargeable to the employee, disqualification is inappropriate. Smith v. Caldwell, 142 Ga.App. 130, 235 S.E.2d 547; Millen v. Caldwell, 253 Ga. 112, 317 S.E.2d 818 (1984).

Absent a duty placed upon an employer by custom or contract, an employee has the burden or responsibility of providing himself with transportation to work. Huiet v. Wallace, 108 Ga.App. 208, 211, 132 S.E.2d 523 (1963). In Huiet v. Wallace, although acknowledging the public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own, this court found fault with the claimant, whose unemployment continued because of her lack of transportation. "Even though the inability to secure transportation may not be the 'fault' of the claimant, there is 'fault' attributable to her when she is unable to carry the burden of providing herself with transportation." Id. at 213, 132 S.E.2d 523.

In the instant case, while it was uncontroverted that the automobile accident resulting in the employee's loss of his usual mode of transportation was not his fault, the fact remains that he still had the responsibility of providing his own transportation to and from work. Since, perhaps save for providential cause, under Huiet v. Wallace, an employee who cannot meet this responsibility is at fault, the penalty was properly applied in this case.

To hold otherwise would obliterate the burden or responsibility assumed by an employee of getting to his place of employment. To embrace and extend in this case the notion and concept of nobody's at fault, similar to what has developed with no-fault insurance, no-fault divorce, and the idea that nobody is to blame in educational problem-solving, would be an extravagant intrusion into traditional master-servant relations that should only be done by legislative pronouncement and not by judicial fiat.

Nothing in Millen v. Caldwell, supra, requires an opposite result. That case defined fault as more than mere failure to perform one's work duties, and emphasized that "an employee who does not perform [his] work assignment adequately because [he] is unable to do so (i.e., not through fault or conscious neglect) cannot be penalized under OCGA § 34-8-158(2)." Id. 253 Ga. at 113, 317 S.E.2d 818. As discussed above, the employee was at fault in the instant case.

Judgment affirmed.

BANKE, C.J., BIRDSONG, P.J., and SOGNIER, POPE, and BEASLEY, JJ., concur.

CARLEY, J., concurs in the judgment only.

McMURRAY, P.J., and BENHAM, J., dissent.

McMURRAY, Presiding Judge, dissenting.

I respectfully dissent from the decision reached by the majority. In determining whether a claimant is disqualified under OCGA § 34-8-158, consideration must be given to the legislative directive that unemployment funds are to be used for persons who become unemployed through no fault of their own. Ford Motor Co. v. Abercrombie, 207 Ga. 464, 62 S.E.2d 209. Unless there is "fault" chargeable to the employee, there can be no disqualification from benefits. Smith v. Caldwell, 142 Ga.App. 130, 131 (3), 235 S.E.2d 547; Colbert v. Caldwell, 144 Ga.App. 220, 240 S.E.2d 769. "Georgia, like the other states of the Union, has a strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2. The burden is on the employer urging the disqualification for benefits to show by a preponderance of evidence that the applicant for compensation comes within the exception. Dalton Brick etc. Co. v. Huiet, 102 Ga.App. 221 (2), 115 S.E.2d 748 (1960); OCGA § 34-8-158(2). 'Fault' means more than mere...