85 Pa. Commw. 137 | Pa. Commw. Ct. | 1984
Opinion by
Before this Court is an appeal by Edward C. Negron (Claimant) from a decision and order of the Unemployment Compensation Board of Review (Board) affirming a referee’s denial of benefits to Claimant on the grounds that Claimant engaged in disqualifying willful misconduct under Section 402(e) of the Unemployment Compensation Law
1. 7-23-82 Reported off by calling the switchboard instead of phone number s/individuals designated by work unit policy.
2. 7-28-82 Again, reported off to switchboard instead of following policy.
3. 7-29-82 Did not report off and did not report for work.
The referenced work unit policy, which Claimant was aware of, in part because of prior violations and sanctions attendant thereto, required that employees who were to be absent were to personally call the Maintenance Superintendent, not Employer’s switchboard, fifteen minutes prior to the scheduled start of their shift. If unable to contact the Maintenance Superintendent, they were to then call their supervisor, and, if unsuccessful there, a call was to be placed to their foreman. Inasmuch as a discharge for failing to adhere to rules regarding the reporting of absences constitutes disqualifying willful misconduct under Section 402(e) of the Law,
It is the employer’s burden to establish that an employee has engaged in disqualifying willful misconduct. Bignell v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 568, 434 A.2d 869 (1981). Where, as here, the party with the burden of proof prevailed below, this Court’s scope of review is limited to a determination of whether an error of law was committed or necessary findings of fact are not supported by substantial evidence. Dunkleberger v. Unemployment Compensation Board of Review, 78 Pa. Commonwealth Ct. 384, 467 A.2d 653 (1983). As noted above, an employee’s failure to report absences in the manner prescribed by his employer can, as a matter of law, constitute willful misconduct “even if not colored by past violations.” Maxwell v. Unemployment Compemation Board of Review, 54 Pa. Commonwealth Ct. 604, 607, 423 A.2d 430, 432 (1980). A conclusion that a violation of a reporting rule was willful misconduct is especially warranted in cases, such as that at bar, where the employee has been warned or reprimanded for prior violations. Gochenauer v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 354, 429 A.2d 1246 (1981). Eligibility for benefits can be preserved, however, if the employee establishes good cause for the violation of the reporting rules. Department of Agriculture v. Unemployment Compensation Board of Review, 44 Pa. Commonwealth Ct. 279, 403 A. 2d 237 (1979).
Claimant asserts on appeal to this Court that the findings below are not supported by substantial competent evidence and that the matter, at the very least,
With respect to the issue of good cause, the Board failed to make separate findings but must be excused from that shortcoming inasmuch as Claimant did not make any assertion regarding July 29th other than his rejected statement that he reported he would be absent the previous day.
Order
Now, (September 13,1984, the decision and order of the Unemployment Compensation Board of Review in the above captioned matter, No. B-217937, dated May 6,1983, is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended,, 43 P.S. §802(e).
Patrick v. Unemployment Compensation Board of Review, 41 Pa. Commonwealth Ct. 238, 398 A.20 1095 (1979).
While objected to as hearsay, the record was properly considered. See G. Henry, Pennsylvania Evidence §448 (1953 & Supp. 1978). See also Hinkle v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 512, 308 A.2d 173 (1973) ; Uniform Business Records as Evidence Act, 42 Pa. C. S. §6108.
Treon v. Unemployment Compensation Board of Review, 499 Pa. 455, 453 A.2d 960 (1982).
But for the circumstances of Claimant’s absence on July 29, this Court would have been constrained to reverse the Board in part and order a remand. The reversal would have related to the finding for July 23, 1982 that Claimant did not report his absence that day and instead had his mother call Mr. Lilly sometime that afternoon. Claimant and his mother both testified that she called for him that morning because he was incapacitated by a kidney stone attack and that she spoke with someone who responded affirmatively when asked if he was Mr. Lilly. While Mr. Lilly testified that he spoke with Claimant’s mother in the afternoon, he also indicated that he was told that Claimant had called the switchboard that morning. In chronicling Claimant’s transgressions, Employer’s discharge letter to him stated for July 23: “Reported off by calling the switchboard. . . .” Finally, while Mr. Katchen and Mr. Smith were unaware of any absence report by Claimant, Mr. Engle’s written record for that date bears the entry “called 7:22 a.m. won’t be in sick.” It was Employer’s burden to prove Claimant violated procedures by substantial evidence. Yet the finding rendered for July 23 is supported only by a portion of Mr. Lilly’s testimony taken out of context. Even the referee’s finding, that Claimant called the switchboard, is supported only by hearsay (what Mr. Lilly was told and the discharge letter) and was thus improper. In short, Employer failed to meet its burden as to July 23.