Wise v. City of Adel

Beasley, Judge,

concurring specially.

It should be noted that what we are holding is that the justification for the employee’s refusal need not be a lack of physical capacity for the job in its circumstances. In Clark v. Ga. Kraft Co., 178 Ga. App. 884 (345 SE2d 61) (1986), the refusal was based on mental capacity; the employee was physically capable for the job, but his mental capacity exceeded its demands and career potential, so the board could find it not “suitable to his capacity.”

In McDaniel v. Roper Corp., 149 Ga. App. 864 (256 SE2d 146) (1979), on the other hand, the refusal was not related to capacity at all; the employee was physically capable, and the refusal related not to mental incapacity or over-capacity, but to the employee’s mere desire not to work the time offered. Such a refusal would have to be regarded as unjustified under the law. Poulnot v. Dundee Mills Corp., 173 Ga. App. 799 (328 SE2d 228) (1985), cited by appellee, involves physical incapacity, but its holding does not mean that the statute contemplates physical capacity exclusively. There is a correlation in the statute between the job’s being suitable to the employee’s capacity and the reason for the employee’s refusal of employment. If the reason is related to the employee’s “capacity” in the broad sense of the word, then the board has discretion to use its judgment to decide whether the reason is “justified.” If the reason is not related to such capacity, and the board finds the job in its circumstances to be suitable to that employee, it would be compelled to reject the refusal as unjustified.

In the instant case, the job offered was physically suitable for the employee, but his capacity for additional gainful employment which conflicted with the job offered authorized the board to find that the job was not suitable “to his capacity.” That being the case, it had discretion to accept the refusal as justified.

*561Morris & Webster, Craig A. Webster, for appellant. Young, Young & Clyatt, Robert M. Clyatt, for appellees.