31 Pa. Commw. 70 | Pa. Commw. Ct. | 1977
Opinion by
Claimant was discharged by his employer for excessive absenteeism. The Bureau of Employment Security (Bureau) granted benefits and after an appeal by the employer, the referee affirmed the Bureau’s decision. The employer then appealed the referee’s decision and the Unemployment Compensation Board of Review (Board) reversed, finding claimant ineligible for benefits under Section 402(e) (wilful misconduct) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The Board found the following facts:
1. Claimant was last employed as a Bobst Operator by Banes & Mayer, Inc., at a final rate*72 of $210 a week and bis last day of work was February 14,1975.
2. Tbe claimant and bis supervisor were tbe only employes capable of doing tbe claimant’s job, and learning his work required an extensive training period. For tbis reason tbe employer was most reluctant to lose tbe claimant’s services.
3. Tbe claimant had a record of excessive absenteeism and failure to call in to report his absences. He bad received one written warning and at least four or five oral warnings about tbis absenteeism and failure to report off.
4. On February 11, and 12, 1975, tbe clabnant was absent. On February 11 he reported off to bis shop union steward but not to bis employer. On February 12 bis wife called tbe employer and said tbe claimant bad something to do and that be might be in later, but be did not report to work later that day.
5. Claimant did not call bis employer on February 11,1975 to report off because tbe reasons for bis absence were to go to tbe bank and to make arrangements to join a union. His absence on February 12 was for the purpose of accompanying bis wife to a clinic.
6. When tbe claimant returned to work, be was allowed to work on February 13 and 14 in order that an assignment he bad started could be finished. He was discharged on February 14 because of bis absences and failure to report off properly.
Claimant attacks tbe findings of fact and conclusion of law of tbe Board. Findings of fact of tbe Board are binding upon tbis Court if those findings
With regard to the Board’s conclusion of law, claimant argues that his conduct does not rise to the level of wilful misconduct, as a matter of law. “The case law has firmly established that absence from work without notification to the employer, in violation of the employer’s rules as to reporting such absenteeism, evidences a deliberate disregard of the standards of behavior an employer has the right to expect of his employees.” Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 597, 601, 309 A.2d 72, 74 (1973). (Citations omitted.) In the instant case claimant knew that his employer required absent employees to call and report when they knew they would be absent and claimant knew who to call at work to report such an absence. Claimant was absent on February 11, 1975, and did not call and ¿notify his employer’s representative, whom he testified he knew he should call, after being warned previously (orally and in writing) concerning such conduct on his part. Such conduct is wilful misconduct under Section 402(e), 43 P.S. §802(e).
One further point, claimant argues that the fact that he was discharged the following day after he re
Accordingly, we will enter the following
Order
Now, July 13,1977, the order of the Unemployment Compensation Board of Review, No. B-126623, dated July 17, 1975, denying unemployment compensation benefits to Leon F. Turner, is affirmed.
Claimant argued both in his brief and at oral argument, that the referee was in a better position than the Board to determine credibility, however, “[a]s the ultimate fact-finding body, the Board is empowered to assess credibility and the weight of the evidence and substitute its own findings for those of the referee.” Mentz v. Unemployment Compensation Board of Review, Pa. Commonwealth Ct. , , 370 A.2d 1232, 1233 (1977). (Citations omitted.)
The referee reasoned in her discussion that the employer's failure to discharge claimant on the day he returned to work indicated that the employer condoned claimant’s absence without notification. This reasoning of the referee was not adopted by the Board. Claimant worked February 14, 1975, after being told he was discharged. The employer gave him a choice of working February 14, 1975, or accepting the discharge before starting that day’s work. Claimant, elected to work.