Opinion
October 22, 1982.
Unemployment compensation — Leave of absence — Voluntary termination of employment — Right to counsel — Remand.
1. In an unemployment compensation case, although the lack of a formal request for a leave of absence can lend support to a finding of a voluntary termination of employment, it is clearly not determinative; and when the presence of counsel may have resulted in fuller exploration of the leave of absence issue, the failure to inform the claimant of his right to counsel directly affects the presentation of the claimant's case. [441-2]
2. An unemployment compensation claimant is entitled to a remand when the failure to warn him of his rights results in a prejudicial hearing. [442]
Submitted on briefs September 15, 1982, before Judges ROGERS, WILLIAMS, JR. and MacPHAIL, sitting as a panel of three.
Appeal, No. 3149 C.D. 1980, from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Carl L. Golden, No. B-189600.
Application to the Office of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Appeal denied. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Simon B. John, John John, for petitioner.
Steven J. Neary, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Carl L. Golden (Claimant) has appealed from a decision of the Unemployment Compensation Board of Review (Board) affirming a referee's denial of benefits under Section 402(b) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937), as amended, 43 P. S. § 802(b).
The voluntary quit provisions.
The Board, in its brief, concedes that the referee failed to comply with 34 Pa. Code § 101.21(a) which requires the referee to give an unrepresented claimant certain instructions regarding his rights. In Katz v. Unemployment Compensation Board of Review, 59 Pa. Commw. 427, 430 A.2d 354 (1981), we held that such an omission on the referee's part required a remand.
Claimant's brief also raised this failure.
The Board, however, argues that the referee's omission was not prejudicial to the Claimant and, therefore, our recent cases of Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commw. 275, 431 A.2d 378 (1981), and Snow v. Unemployment Compensation Board of Review, 61 Pa. Commw. 396, 433 A.2d 922 (1981), are controlling. In those cases, this Court held that, where the failure of the referee to give appropriate instructions did not either prejudice the claimant or materially affect his rights, the error was harmless.
The author of this opinion dissented in Robinson.
In this case, Claimant contends that ill health necessitated his leaving his job. An uncounseled claimant most likely would be unaware of the various requirements which must be proven where health reasons are asserted as grounds for termination. See, e.g., Deiss v. Unemployment Compensation Board of Review, 475 Pa. 547, 381 A.2d 132 (1977). While Claimant by his own testimony admitted that he did not request a leave of absence prior to quitting, he was never asked or given an opportunity to explain why he failed to request such a leave. Although the lack of formal request for a leave of absence can lend support to a finding of a voluntary quit, McDonald v. Unemployment Compensation Board of Review, 48 Pa. Commw. 16, 19, 408 A.2d 1181, 1182 (1979), it is clearly not determinative. McDonald; Cox's Restaurant v. Unemployment Compensation Board of Review, 38 Pa. Commw. 165, 392 A.2d 335 (1978). With the presence of counsel, this leave of absence issue may have been more fully explored. Thus, the failure to inform Claimant of his right to counsel directly affected the presentation of Claimant's case.
Although on this appeal he contends that a letter written to his Employer on June 30, 1980, was an implicit request for such leave.
The crucial question is of course whether the Claimant has made a reasonable good-faith effort to maintain the employment relationship. See Genetin v. Unemployment Compensation Board of Review, 61 Pa. Commw. 133, 136, 433 A.2d 565, 566 (1981).
Furthermore, our review of the record discloses that, while the employer's agent was given an opportunity to cross-examine the Claimant, a similar opportunity to cross-examine the agent was never offered Claimant. Such cross-examination may also have shed further light on the matters at issue in this case.
Being satisfied that the failure to instruct the Claimant as to his rights resulted in a prejudicial hearing, we believe the Claimant is entitled to a remand. It will be so ordered.
ORDER
The order of the Unemployment Compensation Board of Review in Decision No. B-189600 is reversed and the case is remanded to the Board for proceedings not inconsistent with this opinion.