75 Pa. Commw. 622 | Pa. Commw. Ct. | 1983
Opinion by
Maryjo S. Kustafik appeals here from a Decision and Order of the Unemployment Compensation Board of Review (Board) denying her benefits pursuant to the mandate of Section 402(e) of the Unemployment Compensation Law (Law),
Claimant was last employed as the supervisor of the North Gilmore Street facility of the Good Shephard Workshop, a position she held for approximately thirteen months prior to her last day of work, July 1, 1981. On July 1, 1981, Claimant was placed in charge of moving the North Gilmore Street facility to a new location, and at 11:30 A.M. left for lunch with several other employees. Although Claimant was only allowed a half hour for lunch, she didn’t return to work
Willful misconduct has been defined by the Court as
(1) the wanton and wilful disregard of the employer’s interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employee, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer’s interests or of the employee’s duties and obligations.
Kentucky Fried Chicken v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 97, 309 A.2d 165, 168-169 (1973). The employer, of course, has the initial burden of establishing that an employee was discharged for willful misconduct, Miller v. Unemployment Compensation Board of Review, 67 Pa. Commonwealth Ct. 102, 445 A.2d 1372 ,(1982), and where, as here, the employer has prevailed below “our scope of review is .. . limited t:o questions of law and a determination as to whether or not the Board’s findings are supported by substantial evidence.” Garcia v. Unemployment Compensation Board of Review, 69 Pa. Commonwealth Ct. 374, 375, 452 A.2d 71, 71 (1982).
Initially, we note that while it is well settled that a claimant must be informed that his employer has taken an appeal to the Beard from a referee’s award of benefits, Mileski v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 334, 379 A.2d 643 (1977), the unemployment compensation authorities are not required to inform a claimant of his right to request the submission of brief and oral arguments. Walker v. Unemployment Compensation Board of Review, 33 Pa. Commonwealth Ct. 438, 381 A.2d 1353 (1978). It would constitute a denial of due process, however, if the appeal notice actively misled the claimant into believing that he did not have the right to request the submission of briefs or could do so at a later date. Id. In the present case, however, Claimant failed, to submit a petition for reconsideration to the Board within the fifteen day period specified in 34 Pa. Code §101.111 raising this issue,
In considering a similar situation in Walsh v. Unemployment Compensation Board of Review, 16 Pa.
We should and will not, except in extraordinary circumstances not here present, reverse an administrative agency’s deicision and remand for further hearing, on the ground of the asserted inadequacy of the record, where the means provided for obtaining the same relief from the agency are not employed. Furthermore, we can presently conceive of no circumstances in which we should remand, absent an application to the agency, where we are not told what evidence should be, but is not, included in the record. We believe that adherence1 to such principles of review promote the orderly, expeditious, economical and equitable disposition of administrative agéncy oases, which in numbers of matters appealed and of serious questions presented for review, are increasing at a rate which do not permit review at a higher level of what, upon proper application, might have been corrected below.
Id. at 162, 329 A.2d at 527. Since we are precluded from determining whether the appeal notice was misleading since the notice is not part of the record before us, and since it would be inappropriate to remand on this issue since Claimant never requested a reconsideration of the Board's decision, id., we must reject Claimant’s first allegation of error.
Claimant next asserts that she was denied due process since the Board, pursuant to the authority granted it by Section 504 of the Law, 43 P.S. §824, reversed’ the referee without- taking any additional evidence. On numerous occasions, however, our Court has rejected this argument, see, e.g., Hatr v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 617, 402 A.2d 1148 (1979); Unem
■Claimant finally asserts that the Board erred as a matter of law by concluding that she had been guilty of willful misconduct. Specifically, Claimant, citing Florig Equipment Co. v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 495, 399 A.2d 814 (1979), argues (1) that being late for work on one occasion is not a sufficiently serious violation of an employer’s rules to constitute willful misconduct, and (2) that she should be excused from her violation of the one half hour lunch rule since her infraction was caused by the slow service she received at the restaurant. We disagree.
In Florig we affirmed an award of benefits to a claimant who had been dismissed for being fifteen minutes late to work on one occasion when his ride to work was late. The present case is clearly distinguishable from Florig, however. First of all, this is not a single incident of tardiness case, as was Florig. Bather, this is a case of willful misconduct consisting of the disregard of urgent supervisory responsibilities. Here, the seriousness of the Claimant’s delinquency lies in the fact that her unauthorized absence, not for fifteen minutes as in Florig, but for one and one-half hours, was in the course of her critical duty to supervise the moving of her department. Suich conduct was clearly, absent excuse, a substantial disregard of the interests of Claimant’s employer and of Claimant’s duties.
Claimant’s excuse that her extended absence was due to slow service at the restaurant was rejected by the Board which resolved credibility questions against her. Even if believed, her explanation falls short of an acceptable excuse. When asked by her supervisor to explain her delay, she responded, “What was ! sup
Order
Now, July 22, 1983, the order of the Unemployment Compensation Board of Review, Decision No. B-200271, dated October 15,1981, is affirmed.
Act of December 5, 1936, Second Ex. Sees., P.L. (1937) 2897, as amended, 4S P.S. §802(e).
While Claimant did send a letter to the Board after the fifteen day period requesting reconsideration because, as she alleged, she did not have the opportunity to submit a brief and present oral arguments to the Board, this letter did not state that she had been deceived by the appeal notice, and the request was denied on the ground that it had not been timely filed.