34 Pa. Commw. 364 | Pa. Commw. Ct. | 1978
Opinion by
. Lawrence E. Harrison (Claimant) was employed as a retail baker by the Vienna Baking Company until January 2, 1976, when he was discharged by his employer. The Bureau of Employment Security (Bureau) issued a determination upon his application for unemployment compensation benefits on January 27, 1976, denying him benefits pursuant to Sections 402 (e) and 4(w) (1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §§802(e) and 753 (w)(1). A revised determination was issued by the Bureau on January 29, 1976, basing its disapproval on Sections 401(d) and 402(b)(1), 43 P.S. §§801(d) and 802(b)(1).
Following a hearing on February 26, 1976, where Claimant was unrepresented by counsel, the referee issued a decision on March 9, 1976, affirming, as modified, the Bureau’s determination denying Claimant benefits under Section 402(e), 43 P.S. §802 (e). Subsequently, the Unemployment Compensation Board of Review (Board) issued a decision, based on consideration of the entire record of the prior proceedings, disallowing the appeal pursuant to the provisions of Section 502, 43 P.S. §822.
Testimony was presented at the hearing concerning Vienna Baking Company’s allegations that Claimant did not comply with the work schedule and failed to get the bread out in time. The first of these allegations was not mentioned by the referee in his findings of fact, and is therefore not before us. We are left with the question of whether the Board’s finding that Claimant was discharged from his employment for failure to get the retail bread baked in time for pick
At the referee’s hearing, Vienna Baking Company was represented by Kenneth Bartow, Production Manager. A review of his testimony discloses that Mr. Bartow had no first-hand knowledge of the facts or circumstances concerning the allegation that Claimant failed to meet production requirements. Claimant’s immediate supervisor at the time he was terminated was Mr. Clines. It was from him and other unnamed persons that Mr. Bartow gained information about the optimal amount of time it should have taken Claimant to prepare the bread.
The burden of proving that an employe was discharged for wilful misconduct is upon the employer. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). Since there was no corroborating testimony to support Mr. Bartow’s hearsay testimony, Vienna Baking Company did not sustain this burden. The finding of' fact that Claim
Obdeb
And Now, this 28th day of March, 1978, the order of the referee and the Unemployment Compensation Board of Review, denying benefits to Lawrence E. Harrison, is hereby reversed and the case is remanded to the Board for a proper computation of benefits.
The testimony revealed the following:
Employer Rep: Personally, ma’am, I’m not exactly, completely experienced with the retail operation, but from what 1 can gather from talking to Mr. Cline [sic] and other people, there was no problem for him getting his production out in eight hours.
Referee : What record do you have there if [sic] him not making his production?
Employer Rep : Well, all I have is the fact that the trucks were not getting out, and when I talked with the drivers they said the bread wasn’t there; they could not put it out cause it wasn’t there.
Employer Representative : No, I didn’t bring . . . I’m not, I’m here, I shouldn’t even be here. ...
Claimant : He’s not my boss.
Employer Rep : The man that represented him is sick today and he couldn’t make it ... .