83 Pa. Commw. 502 | Pa. Commw. Ct. | 1984
Opinion by
James Naylon (Claimant) has appealed from an order of the Unemployment Compensation Board of Review (Board) which denied his application for unemployment compensation benefits under Section 402 (b) of the Unemployment Compensation Law.
Claimant had been employed as a salesman on commission at Howley Tire Company for approximately thirty years when he was unilaterally transferred by
Claimant subsequently applied for benefits, which were denied by the Office of Employment Security (OES). After a hearing, however, the referee reversed the OES and granted benefits based on his conclusion that the reduction in Claimant’s wages rendered his employment unsuitable. On appeal, the Board again reversed, concluding that Claimant had accepted the terms and conditions of the transfer and could not rely on his later dissatisfaction with his pay.
The Claimant, of course, bears the burden of proving that he had a necessitous and compelling reason for terminating his employment. DeNofa v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 97, 413 A.2d 786 (1980). Where, as here, the party with the burden of proof has not prevailed before the Board, our scope of review is to determine whether the findings of fact can be sustained without capriciously disregarding competent evidence and whether the findings are consistent with each other and with the conclusions of law. Spinelli v. Unemployment Compensation Board of Review, 63 Pa. Commonwealth Ct. 358, 437 A.2d 1320 (1981).
In general, once an employee has accepted new terms of employment, he has conceded their suitability and may not later claim that dissatisfaction with those terms constitutes cause of a necessitous and com
In the matter sub judice, Claimant averaged approximately $420 per week in commissions before his transfer. After the transfer, Claimant was paid a minimum $150 weekly draw unless his commissions exceeded that amount, in which case he would receive the greater amount that he earned in commissions. Claimant’s commissions only exceeded $150 during one of the work weeks following his transfer. It is clear that such a severe reduction in earnings could constitute a necessitous and compelling cause for Claimant’s voluntary termination. Ship Inn, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 292, 412 A.2d 913 (1980). The difficulty in the instant case, however, arises from the fact that Claimant did not immediately terminate his employment, but rather, decided to attempt to work under the new terms. Only when Claimant, after a reasonable effort, decided that he was unable to earn adequate commissions at Discount Tire Center did he terminate his employment. We conclude, in light of the facts that Claimant worked on a commission basis and was forced to begin a new position in which he could not adequately predict what his commission earnings would be, that Claimant was reasonably unaware of the true terms and conditions of the transfer. Since Claimant was reasonably unaware of the de
Order reversed.
Order
The order of the Unemployment Compensation Board of Review, Decision No. B-219195, dated June 24, 1983, is hereby reversed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(b).
The same individual apparently owns both Howley and the Discount Tire Center.