(dissenting).
Appellant Strackbein’s issue, by pleading, is raised in these words:
The Deputy Director of the Division of Labor and Management for the State of South Dakota errored [sic] as a matter of law in dismissing Appellant's grievance for the reason that the evidence does not support the finding that Appellant’s physical condition would interfere with his job as a mechanic for Appellee.
This issue was propounded to the circuit judge. A record of all proceedings was certified on March 3, 1986, to Circuit Judge Roland Grosshans. Judge Grosshans read the record, took no testimony, and affirmed the Deputy Director’s decision by a one-page letter on August 19, 1986, with two key remarks: (1) “The record before me contains substantial evidence to support the decision of the agency, and for that matter, the decision of Appellee”; (2) “The decision of the agency was not clearly erroneous in light of the record before me.” As regards (1) above, we have long abandoned the substantive evidence test, and (2) I respectfully disagree with Judge Gros-shans’ assessment of the record and this Court’s affirmance of his decision. Strack-bein, an ordinary working man, put his foot in his mouth by making some statements. For these statements, he lost his job. As far as the medical testimony is concerned and his job performance, he is capable of adequately performing his assigned duties and no party disputes that he has, indeed, performed his duties and performed them well. Judge Grosshans entered a Memorandum Opinion on August 19, 1986, and an Order on August 22,1986, affirming the decision of the Deputy Director and dismissing Strackbein’s appeal.
*274The State’s Attorney of Fall River County advised the Superintendent of the Fall River County Highway Department to discharge Strackbein. Superintendent Nelson did so. Fall River County relies on Dr. Hefferen’s testimony; his affidavit, Griev-ant’s Exhibit No. 6, of August 15,1983, has been overlooked by all officials, including this Court. It states:
I. THAT he is a Neurologist who has a practice in Rapid City, South Dakota.
II. THAT one of his patients is Douglas Strackbein who has been diagnosed as having vertigo and migraine.
II. THAT Douglas Strackbein’s vertigo and migraine are of the mild to moderate type and have never really put him out of work.
IV. THAT Douglas Strackbein’s vertigo and migraine should not be a cause for his dismissal from work since they are not life threatening at all and, in fact, are in the mild to moderate range.
V. THAT when Douglas Strackbein does get a migraine or vertiginous episode, these can be controlled by the medicine that I have prescribed for him without interfer- [sic] with his work.
VI. THAT Douglas Strackbein has not had many headaches and vertiginous spells while he was at work.
VII. THAT it is my opinion that Douglas Strackbein should not have his job jeopardized because of his migraine. There are many patients with migraine and vertigo, including myself, who do a job perfectly well even though they have one or both of these symptoms.
VIII. I would strongly recommend that Douglas Strackbein keep his job because the migraine vertiginous status may well be aggravated by being off from work which is a depressive factor.
There are signed affidavits in the record, by Strackbein’s fellow employees, reflecting that Strackbein was a competent mechanic and did not beg off work because of vertigo or migraine headaches. Strack-bein — not once — ever jeopardized the safety of his fellow employees or the public acting as a mechanic or mechanic's helper.
Strackbein, after consulting with a neurologist (Hefferen) and being placed on medication, did not have any further episodes of vertigo (as of April 11, 1983) and has not had any migraine headaches since October 31, 1983. See Dr. Kelts’ Deposition, Exhibit No. 1. Kelts examined Strackbein after Hefferen.
I invite the reader's interest in SDCL 32-12-5.1, a statute devised to permit people who have “episodes of epilepsy, convulsions, fits, seizures, or blackouts ...” to operate a motor vehicle upon receipt of a verified statement of a doctor that, in essence, establishes medication which adequately controls the condition. Strackbein does not have such serious neurological problems, yet he is discharged from his job for “just cause” even though he takes medication and has his problem under control. Strackbein is entitled to equal protection of the law.
Dr. Kelts performed a follow-up examination in January 1984. Strackbein had not suffered any more dizzy spells. Because of medication, the vertigo was gone. Dr. Kelts testified in his deposition, also, that Strackbein had suffered no more migraine headaches since October 31, 1983. See Kelts’ Deposition, page 36, lines 19-21; page 37, line 4. Dr. Kelts performed a bilateral fundal examination of Strack-bein’s head. This examination determines if a person, who has headaches, has any pressure inside the head. There was no such pressure. See Kelts’ Deposition, page 21. A CAT scan was also normal. Kelts’ Deposition, page 26. A brain wave test was normal, see Kelts’ Deposition, page 26, lines 17-23; page 27. It was Kelts’ opinion that Strackbein would be able to perform his duties as a mechanic such as changing the oil in a pickup, roadgrader and caterpillar, changing the air filters and tires in the same equipment, and greasing vehicles. Kelts’ Deposition, page 43, lines 22-25; pages 44-49. Kelts’ opinion was based on the fact that Strackbein’s vertigo condition was not of a permanent nature. Kelts’ Deposition, page 51, lines 14-21. Because Strackbein’s vertigo was mild and never impaired him intellectually or confused him *275in any way, it would be Kelts’ opinion that Strackbein would be able to determine when an occurrence of vertigo was coming on and would be able to stop what he was doing and wait until the spell disappeared since they are usually short-lived and mild. Kelts’ Deposition, page 59, lines 15-23. Kelts went on to testify that'it did not matter how long the spell was, because with the type of spell appellant experienced, he would be able to take the opportunity to stop what he was doing and wait until the spell ceased so that he would not be endangering anyone or himself by continuing to work. Kelts’ Deposition, page 60, lines 3-7.
Strackbein was honest with the foreman; he said he had a problem; he did something to correct his problem; his problem was corrected; yet, he loses his job. It is unfair, unjust, a termination not for “just cause,” and an error of law below. The findings of fact were clearly erroneous, Pullman-Standard v. Swint, 456 U.S. 273, 287, 102 S.Ct. 1781, 1789, 72 L.Ed.2d 66, 79 (1982), and the conclusions of law were mistakes of law or mistakes of impression of legal principles. In re Guardianship of Viereck, 411 N.W.2d 102, 107-08 (S.D.1987) (Henderson, J., specially concurring).
Fall River County did not meet its burden of proof; it rests with the employer. Grievance of O’Neill, 347 N.W.2d 887 (S.D.1984). In Rollinger v. Dairyland Creamery Co., 66 S.D. 592, 287 N.W. 333 (1939), we held, essentially, that an employer could terminate an employee who becomes physically disabled and is no longer able to perform his job. Here, Strackbein can do the job, does do the job, and we uphold his termination. This decision is all based on “potential disability” and “potential inability to perform.” I declare unto you that there is not a preponderance of proof in this record to support this wispy theory.
“Just cause,” a term contained in the Collective Bargaining Agreement, requires a finding that the cause or reason for the action taken by the employer in dismissing the employee be sufficient at law. “Just cause” is defined at 15A Am.Jur.2d Civil Service § 63, at 90 (1976), as:
Legal cause ... exists if the facts ... disclose that the employee’s conduct impairs the efficiency of the public service, but there must be a real and substantial relation between the employee’s conduct and the efficient operation of the public service_ (Emphasis supplied.)
There is no evidence in the record to show “a real and substantial relation” between Strackbein’s condition and the performance of his job.
FINIS: Strackbein was terminated in July 1983; he had not experienced any episodes of vertigo since April 1983. Dr. Hef-feren’s report and Dr. Kelts’ follow-up examination corroborates this. Pray tell, why was this working man — an excellent worker — canned? Because he innocently told the truth to his boss which set off a series of legal moves against him! A tip of my hat to Strackbein’s lawyers for taking this working man’s case to the Supreme Court. And I proudly walk with them and Strackbein today.