64 Pa. Commw. 332 | Pa. Commw. Ct. | 1982
Opinion by
Northeastern Hospital (Employer) seeks review of two separate Unemployment Compensation Board (Board) decisions in this consolidated appeal. The Board found Nelson J. Jones (Claimant) entitled to
Claimant was discharged as an assistant cook by Employer for failing to give proper notice of bis absence from work. When be applied for unemployment
Concerning the second decision on appeal here, the Bureau denied the Employer’s application for relief from charges under Section 302(a) of the Act. Both the referee and the Board affirmed that denial. The Employer now seeks relief in this Court. We affirm both decisions.
Claimant last worked on February 4, 1977. Due to scheduled days off and vacation days, Claimant was next scheduled to work on February 10, 1977, on the 5:30 A.M. to 1:00 P.M. shift. The Claimant testified that he was unable to report for work due to illness. The Employer requires “double notice” from its employees when they are absent.
The burden of proving willful misconduct so as to render a claimant ineligible for unemployment compensation benefits is on the employer. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979). In this case, the burden was on the Employer to prove that the Claimant’s failure to speak directly with the Food Director to discuss his absence constituted willful misconduct. The question of whether the behavior for which a claimant is discharged constitutes willful misconduct is a question of law and subject to review by this Court. Mancini v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 266, 412 A.2d 702 (1980). Where, as here, the party with the burden of proof fails to prevail before the Board, our scope of review is limited to determining whether the finding's of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Aluminum Co. of America v. Theis, 11 Pa. Commonwealth Ct. 587, 590, 314 A.2d 893, 895 (1974). Capricious disregard has been defined to mean a willful and deliberate disregard of competent testimony and relevant evidence which one of ordinary intelligence would not possibly have disregarded in reaching a conclusion. Potts v. Unemployment Compensation Board of Review, 46 Pa. Commonwealth Ct. 407, 410, 406 A.2d 585, 586 (1979).
Although we may have reached a different conclusion had we been the factfinder, absent a deliberate disregard of competent evidence, we must sustain the
■ Regarding the second decision on appeal in this action, that is the Employer’s application for relief under Section 302(a)(1) of the Act, we find that the Board acted properly in affirming the denial of relief from charges. By the language of the statute the Employer is only entitled to. relief if the employee was discharged for'willful misconduct or leaving work without good cause. Neither , of those two conditions was met here.. Therefore, the Employer having failed
Orders affirmed.
Order
And- Now, this 29th day of January, 1982, the Orders of the Unemployment Compensation Board of Review dated December 5, 1978 (No. B-166612) and December 27,1978 (No. B-167455) are affirmed.
Section 302(a)(1) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as ■amended, 43 P.S. §782(a) (1) provides in relevant part:
Such account shall be credited with an contributions paid by such employer for periods subsequent to June thirtieth, one thousand nine hundred forty-eight. Such account shall be charged with an amount determined by multiplying the wages of compensated employees of such employer for the twelve month period ended June thirtieth, one thousand nine hundred forty-nine, by .the state experience heretofore used in determining rates of contributions for the year one thousand nine hundred forty-nine. Subsequent to June thirtieth, one thousand nine hundred forty-nine, such account shall be charged with all compensation, paid to each individual who received from such employer wage credits constituting the base of such compensation, in the proportion that such wage credits with such employer bears to the total wage credits received by such individual from all employers: Provided, That if the department finds that such individual was separated from his most recent work for such employer due to being discharged for willful misconduct connected with such work, or due .to his leaving such work without good cause attributable to his employment, thereafter no compensation paid to such individual with respect to any week of unemployment occurring subsequent to such separation, which is based upon wages paid by such employer with respect to employment prior .to such separation, shall be charged to such employer’s account under the provisions of this sub-section. . . .
In its brief and at oral argument, the Board admitted that its fourth finding of fact that Claimant was unaware of the double notice rule, was in error. Nevertheless, the Board contends, and we agree, thát the erroneous finding is not critical to its decision in this case because the Board also found from competent evidence that Claimant did make a reasonable effort to comply with the double notice requirement. Therefore, whether he knew of the rule or not is, in this case, irrelevant.
In unemployment compensation cases the Board is the ultimate facttinder. The Board must resolve questions of credibility and conflicts in the evidence. They must also determine the weight to be given to the evidence. Peluso v. Unemployment Compensation Board of Review, 12 Pa. Commonwealth Ct. 250, 315 A.2d 340 (1974). Here the Board found the claimant’s testimony to be more credible. Making this determination was a proper function of the Board, and we will not substitute our judgment for that of the Board.