12 Pa. Commw. 96 | Pa. Commw. Ct. | 1974
Opinion by
John Haseleu (Haseleu) had been employed by Mc-Millen & Baer Volkswagen, Inc., for approximately two years. He had originally been hired on a part-time basis as a carhop while still attending high school. His hours of work were from 3:30 p.m. to 7 p.m.
In June 1972, Haseleu began working full time performing other duties, including painting, in addition to his work as carhop. This full-time work was temporary and was only to last until July 17, 1972, at which time Haseleu was to start trade school.
On June 27, 1972, Haseleu started work about 10 a.m. Approximately 1 p.m., his employer discovered him walking about the premises with a paintbrush in his hand. There was a conflict of testimony on what happened next, but the referee found as a fact that the employer told Haseleu either to start painting or go home. Haseleu then left but returned at 3:30 p.m. to perform his carhop duties. At this time his employer told him he had been replaced.
Haseleu was denied unemployment compensation benefits as a result of the referee’s determination that his unemployment was due to his voluntarily leaving work. The Unemployment Compensation Board of Review (Board) affirmed. This appeal then followed.
Section 402(b) (1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §802(b)(l), provides:
“An employe shall be ineligible for compensation for any week—
“(b)(1) In which his unemployment is due to voluntarily leaving work without cause of a necessitous and compelling nature. . . .” We must decide whether or not Haseleu volunta/rily left work and is therefore ineligible for unemployment benefits under the above section. This question is one of law. See Martinez Unemployment Compensation Case, 186 Pa. Superior Ct. 50, 140 A. 2d 351 (1958).
A reading of the record reveals that there was a misunderstanding between Haseleu and his employer as to what was meant when the employer told Haseleu to start painting or go home. Haseleu understood that he was merely relinquishing his newly acquired full-time status and that his job as carhop would be unaffected by his decision not to paint. This alleged understanding gains support from the fact that he returned to work at 3:30 p.m. to perform his duties as carhop. The employer, on the other hand, understood that his words were an ultimatrun to Haseleu either to paint or be fired altogether.
A similar situation was presented in the case of Morgan v. Unemployment Compensation Board of Review, 174 Pa. Superior Ct. 59, 98 A. 2d 405 (1953). There a painter left work, without permission, to go hunting and was informed on his return three days later that he no longer had a job. The Court, in finding that the painter did not voluntarily leave work, stated: “Unauthorized absenteeism . . . may constitute just cause for dismissal by an employer, but is not tantamount to resignation.” 174 Pa. Superior Ct. at 61, 98 A. 2d at 406.
This language is applicable to the present situation. Haseleu’s refusal to paint and subsequent absence from work for almost three hours may have constituted just cause for his dismissal, but the conclusion of both the referee and the Board that such conduct constituted voluntarily leaving work under Section 402(b) (1) of the Unemployment Compensation Act was incorrect as a matter of law.
Order
And Now, this 19th day of February 1974, we reverse the order of the Unemployment Compensation Board of Review. The record is hereby remanded to the Board for further proceedings consistent with this opinion.
If the Board had ruled the claimant ineligible for wilful misconduct, under the provisions of Section 402(e) of the Act of December 5, 1936, Second Ex. Sess., P. L. (1937) 2897, as amended, 43 P.S. §802 (e), our review on this record likely would have resulted in an affirmance, but we cannot assume that the Board would have found wilful misconduct on the part of the claimant when it did not consider that question.