33 Pa. Commw. 491 | Pa. Commw. Ct. | 1978
Opinion by
William Roebuck (claimant) appeals here from an order of tbe Unemployment Compensation Board of Review (Board) which affirmed a referee’s decision denying bim unemployment compensation.
The Bureau of Employment Security (Bureau) denied the claimant’s application for unemployment compensation, determining that he had been discharged for wilful misconduct and was consequently ineligible for benefits pursuant to Section 402(e) of the Unemployment Compensation Law
Section 510 of the Act, 43 P.S. §830, provides that this Court’s scope of review in unemployment compensation appeals is confined to questions of law and, absent fraud, to a determination of whether or not the findings of fact are supported by the evidence. The claimant argues here that: (1) the Board’s findings are not supported by substantial evidence, and (2) he
The question of whether or not an employe’s action which led to his dismissal rises to the level of wilful misconduct is one of law and is, therefore, subject to our review. O’Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 151, 154, 333 A.2d 815, 817 (1975).
The claimant urges first that the referee’s finding that he did not report off properly for work during his last period of absence is not supported by substantial evidence. He testified at the hearing before the referee that he had called the employer to report his absence as was required by the employer’s policy. The employer’s representative testified, however, that the employer had no contact with the claimant during this period. This conflict in the testimony clearly presented an issue of credibility to the referee who resolved it in favor of the employer’s representative, and we must let the finding stand. We have many times recognized that it is the referee’s duty to resolve conflicts in the evidence and that a referee’s finding is not unsupported by substantial evidence simply because conflicting evidence exists in the record wMch the referee chose not to believe. See, e.g., Simpson v. Unemployment Compensation Board of Review, 29 Pa. Commonwealth Ct. 245, 248, 370 A.2d 432, 435 (1977).
The claimant also argues that he was not in violation of his employer’s absenteeism policy at the time of his discharge and that the employer therefore, f ailed to meet his burden of establishing that the claimant was guilty of wilful misconduct. Although absenteeism by itself generally does not constitute wilful misconduct, Unemployment Compensation Board of Review v. Blouse, 23 Pa. Commonwealth Ct. 66, 68,
The order of the Board is affirmed.
Order
And Now, this 3rd day of February, 1978, the order of the Unemployment Compensation Board of Review dated July 21, 1976 and docketed at B-132720 is hereby affirmed.
Act of December 5, 1936, Second Ex. Sess., P.D. (1937) 2897, as amended, 43 P.S. §751 et seq.