47 Pa. Commw. 148 | Pa. Commw. Ct. | 1979
Opinion by
Jay L. Markley (claimant) appeals from an Unemployment Compensation Board of Review (Board) decision which reversed a referee’s grant of benefits.
The claimant was a business analyst and chemical engineer employed by the Sun Oil Company (employer) in Philadelphia when he received a letter from his employer on October 25, 1977 requesting that he correct certain “performance problems”. These problems were said to include “persistent lateness, early departure, continued and extended periods of time devoted to non-work related activity and poor quality of work.” Although it appears that the claimant made
The claimant’s initial application for benefits was denied by the Bureau of Employment Security (Bureau) pursuant to Section 402(e) of the Unemployment Compensation Law (Act)
The employer, of course, had the burden here of proving that the claimant’s discharge resulted from an act of willful misconduct and that unemployment benefits should therefore be denied. Romanovich v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 501, 379 A.2d 1065 (1977). Whether or not the claimant’s actions constituted willful discharge from employment, of course, is a question of law subject to our judicial review. Collins v. Unem
A careful reading of the record indicates that the employer twice found the claimant sleeping during working hours and expressed his dissatisfaction, and we have previously held that absent proof that the employer either permits or tolerates sleeping at work, such conduct constitutes misconduct. Unemployment Compensation Board of Review v. Simone, 24 Pa. Commonwealth Ct. 248, 355 A.2d 614 (1976). We believe that there is insufficient evidence of record here to show that the employer permitted the claimant to sleep at the times in question.
Turning to the issue of the claimant’s tardiness, the law is clear that habitual tardiness, particularly after warnings, is sufficient evidence to sustain a finding of willful misconduct. Unemployment Compensation Board of Review v. Glenn, 23 Pa. Commonwealth Ct. 240, 350 A.2d 890 (1976). And the record here clearly indicates that even after the employer made efforts to accommodate the claimant in regard to arrival time, the claimant continued to be late. He maintains that the “flex time” schedule which he was permitted to follow allowed him to have approximate starting times, but the record simply does not sup
Finally, the Board concluded that the claimant’s quality of work did not improve after he received the first letter. While it is true that mere incompetence, inexperience or inability which may well justify discharge, will not constitute willful misconduct so as to render an employee ineligible for benefits, Wetzel v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 195, 370 A.2d 415 (1977), the Board obviously concluded that the claimant’s poor quality of work was the result of his unwillingness to work to the best of his ability. Such unwillingness undoubtedly evidences a disregard for the standards of service which an employer has a right to expect. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973).
We will therefore affirm the order of the Board.
Order
And Now, this 1st day of November, 1979, the Order of the Unemployment Compensation Board of Review denying benefits to Jay L. Markley is affirmed.
Act of December 5, 1936, Second Ex. Sess. P.L. (1937) 2897, as amended, 43 P.S. §802 (e).