86 Pa. Commw. 151 | Pa. Commw. Ct. | 1984
Opinion by
John Fitzgerald Chobert (claimant) appeals from an order by the Unemployment Compensation Board of Review, which, affirming a referee’s decision, denied the claimant benefits on the ground that his unemployment was the result of his willful misconduct in his employment.
The claimant was a sales person and stock helper for a book merchandising enterprise for about nine months, when on April 23, 1982, the store manager dismissed him.
Neither party was represented by counsel at the referee’s hearing. The employer’s only witness present was the vice-president of the enterprise who testified that the principal reason for the claimant’s discharge was his unsatisfactory work performance, with specific reference to the claimant’s alleged practice of taking frequent, long breaks. The witness admitted not having warned the claimant and that he never heard the store manager warn him.
The claimant testified that the employer had no policy concerning breaks. He testified that he did not loaf on the job and that the manager never reprimanded him for taking breaks.
The referee then called the company president on the telephone, administered the witness’s oath and questioned him concerning the claimant’s work habits. The claimant had not known that evidence against him would be taken by telephone.
The president stated that the claimant was discharged for unsatisfactory work performance and that the claimant was given paper work and bookkeeping assignments, which the claimant either did incorrectly or incompletely. He said that the claimant failed to record book sales and that it was not he, but the claimant’s supervisor, the store manager, who had warned the claimant about this conduct.
In response, the claimant testified that he had obeyed the employer’s instructions about book sales; he denied having been reprimanded.
The referee then questioned the president, still on the telephone, about the claimant’s attendance record. In answer to the referee’s questions, the president said
The referee found that the employer dismissed the claimant because of tardiness and failure to do sufficient work and for being late on April 21, 1982. The board adopted the referee’s findings and affirmed the referee’s conclusion that the claimant’s unemployment was the result of willful misconduct.
We do not condemn the practice of conducting administrative hearings or the examination of witnesses by telephone conference call; but such hearings and examinations must comport with fundamental fairness guaranteed by the due process clause, with the statutory requirement of a fair hearing in unemployment compensation hearings,
Clearly, it was unfair to the uncounseled claimant and contrary to law to permit the company president to testify by telephone from records not available to the claimant to use in cross-examination.
The president testified from what he first referred to as time sheets and later described as an annual log which he asserted showed that the claimant was tardy,
Accordingly, we reverse the order of the Unemployment Compensation Board of Review and remand the record for a new hearing to be conducted consistently herewith. Jurisdiction is relinquished.
Order
And Now, this 27th day of November, 1984, the order of the Unemployment Compensation Board of Review in the above-captioned matter is reversed; the record is remanded for a new hearing to be conducted consistently herewith. Jurisdiction is relinquished.
Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
Section. 5 of the Unemployment Compensation Law, 43 P.S. §822.