28 Pa. Commw. 591 | Pa. Commw. Ct. | 1977
Opinion by
The issue presented in this unemployment compensation case is whether Harry B. Thompson’s notification to his employer on November 18, 1975 that he was not going to work because he had to get a replacement car was sufficient notice for his absence the following day. We find, when viewed in the light of all the facts pertinent to this case, that it was not and affirm the denial of benefits by the Unemployment Compensation Board of Beview (Board), pursuant to Section 402(e) of the Unemployment Compensa
Thompson’s employment with Grumman Allied (Grumman) had been tarnished by 10 days of absence during the period from August 12 to November 6, 1975. In fact, after an unexcused absence on August 22, Thompson had been warned that his job was in jeopardy.
Before the referee, Grumman’s representative testified that, although he excused Thompson’s absence on November 18 so that he could look for a ear, he expected him back the. next day. Thompson testified that on November 19 and 20 he had been attempting to find a ear or to prepare the car he found for inspection. Thompson further testified that he called Grumman on November. 20, knowledge of which Grumman’s representative denied.
The Board’s final adjudication incorporated the referee’s decision which concluded that Thompson was guilty of willful misconduct by reason of his unexcused absences of November 19 and 20. We have often defined willful misconduct as the wanton and willful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of the standards of behavior which the employer has a right to expect from his employee, or negligence which manifests culpability, wrongful intent, or evil design which shows an intentional and substantial disregard of the employer’s interest or the employee’s duties and obligations to the employer. E.g., Collins v. Unemployment Compensation Board of Review, 25 Pa. Commonwealth Ct. 538, 360 A.2d 760 (1976). Whether an employee’s conduct rises to the level of willful misconduct is a question of law and, therefore, subject to our review. Id.
Judge Wilkinson, speaking for this Court in Unemployment Compensation Board of Review v. Rodriguez, 22 Pa. Commonwealth Ct. 586, 589, 349 A.2d 915, 917 (1976), noted that, while absenteeism by itself does not constitute willful misconduct, absenteeism joined by the failure to' notify the employer .and a prior warning against such conduct does constitute willful misconduct. In Rodriguez, we denied ben
In the instant case, the facts of absenteeism and of prior warning are not contested. The question we must decide is whether there was sufficient notice to Grumman.
Thompson’s reliance on Flynn Unemployment Compensation Case, 174 Pa. Superior Ct. 71, 98 A.2d 490
"We consider Flynn, supra, to be ■ distinguishable and therefore not dispositive of the case at bar. Accordingly, we hold that Thompson was guilty of willful misconduct and thus ineligible for unemployment compensation benefits.
Order
And Now, this 14th day of February, 1977, the order of the Unemployment Compensation Board of Review denying benefits to Harry R. Thompson is hereby affirmed.
Section 402(e) provides, in pertinent part:
An employe shall be ineligible for compensation for any week—
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. ...
Robert Hickey, Production Manager for Grumman, testified that Thompson had been absent August 19, 20, and 21. On the evening of August 21, he, Hickey, had spoken with Thompson and had at that time been assured that Thompson would report for work the next day. The next day Thompson neither reported nor notified the employer of his impending absence.
Because we will decide this ease on the basis of Thompson’s absence of November 19, which alone is sufficient to support a con
The question of whether notice was given at all is one of fact, while the sufficiency of that notice is one of law. Unemployment Compensation Board of Review v. Blouse, 23 Pa. Commonwealth Ct. 66, 350 A.2d 220 (1976). The referee made no specific findings concerning notice, although he did label Thompson’s absences of November 19 and 20 “unexcused.”