38 Pa. Commw. 62 | Pa. Commw. Ct. | 1978
Opinion by
This is an appeal from a decision of the Unemployment Compensation Board of Review (Board) affirming, after the Board took additional testimony through a Hearing Officer, the order of the referee denying benefits to petitioner (claimant) pursuant to Section 402(b) (1) of the Unemployment Compensation Law
Claimant was employed by Lemmon Pharmacal Company (Lemmon) .in. the newly created position of telephone sales representative, earning a final salary of $125 per week plus commission. Claimant served in this capacity for the duration of her nearly nine month employment by Lemmon. Approximately two months into her assignment claimant was joined by a part-time cow.orker with whom commissions were shared. Dissatisfied, with the arrangements for sharing commissions and what was perceived to be fayoritism in- the treatment of -her- coworker by their supervisor-, claimant decided to leave her job on April 5, 1976.
Claimant puts special emphasis on the Board’s failure to find a valid medical reason for her severance, a subject not fully developed until the hearing before the Hearing Officer. When adverse impact on health is offered as a cause of necessitous and compelling nature, justifying the award of benefits following a voluntary termination, consideration must be guided by our recent decision in Baldassano v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 457, 460, 383 A.2d 988, 989-90 (1978) where we stated:
*66 A claimant seeking benefits after leaving employment for health reasons must, however, meet certain requirements. First, the employee must inform the employer of the health problems. Elshinnawy v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 597, 317 A.2d 332 (1974). Second, the employee must request a transfer to worwhich is suitable in light of the health problems. Tollari v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 589, 309 A.2d 833 (1973). Third, the employee must offer ‘competent testimony that at time of termination, adequate health reasons existed to justify termination.’ Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 556, 381 A.2d 132, 136 (1977). (Emphasis in original.)
The testimony presented in the instant case is contradictory as to whether claimant made known to her employer any health problems caused or aggravated by her employment. There is no finding made on this particular point and were it determinative we might be forced to remand to the Board for the making of additional findings.
Accordingly, we will enter the following
Order
And Now, October 6, 1978, the order of the Unemployment Compensation Board of Review, Decision No. B-139414-B, dated May 24, 1977, is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess-., P.L. (1937) 2897, as amended, 43 P.S. §802(b) (1).
Section- 402(b) (1)--provides’ in‘pertinent part:
An employe shall be ineligible for compensation for any week—
. (b)(1) In-which, his unemployment is due.to voluntarily leaving work without cause óf a necessitous and compelling nature. ... ’
The April 5, 1976 termination date as found by the referee and Board" accords with the testimony given" by the employer but is in conflict with an-April ,2, 1976 termination date, given by claimant in her testimony and in her application records with the Bureau of Employment. .Security -generated on April 4, 1976. .This discrepancy is most likely, explained by a difference in the date when claimant in her own mind determined to leave (April 2) and the date when officials at Lemmon were formálly" made aware'of her decision. (April 5).': •
Which reads in its entirety:
Claimant voluntarily terminated her employment on April 6, 1976 because of dissatisfaction with working conditions. Claimant did not feel she was receiving full credit for sales she initiated, resulting in less commission.
QR: Alright. That’s one thing. Was there something else? Other than the worker sharing your commission and she not working?
AC: Well, that was the main thing. (Original Record p. 9a).
Both the Initial Application and Claim Record, (Original Record Item No. 1) and the Summary of Interview, (Id. Item No. 3) indicate claimant’s reasons for separation were feelings that “partiality and favoritism were shown.”
It might be said that the Board’s Finding Number 2 that the claimant voluntarily terminated her employment because of dissatisfaction with working conditions is a finding that she did not leave for health reasons. Certainly, a reading of the entire record would support such a finding.
43 P.S. §752.