Summary
holding that claimant engaged in willful misconduct where the employer warned him that if he was late again he would be discharged, but shortly thereafter, the claimant was late because he overslept
Summary of this case from Zimmerman v. Unemployment Comp. Bd. of ReviewOpinion
Argued February 5, 1979
April 27, 1979.
Unemployment compensation — Habitual tardiness — Absences — Warnings — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Wilful misconduct.
1. An employe on probation for excessive tardiness and other violations of work rules is properly found to have been discharged for wilful misconduct precluding receipt of benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, when discharged for failing to report to work or to call in to explain his absence. [314]
2. An employe warned about the consequences of any further tardiness and placed on probation for habitual tardiness and other work rule violations is properly found to be guilty of wilful misconduct when discharged not for tardiness but for failing to report for work when he slept through his entire shift. [314]
Argued February 5, 1979, before Judges CRUMLISH, JR., WILKINSON, JR. and MENCER, sitting as a panel of three.
Appeal, No. 71 C.D. 1978, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of John W. Blefko, No. B-148493.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael Goldberg, for petitioner.
Charles G. Hasson, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.
John W. Blefko (claimant) was denied unemployment compensation benefits by the Unemployment Compensation Board of Review (Board) on the basis that he was guilty of willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e). We affirm.
As an employee of the Donnelly Printing Company (employer), claimant developed a history of excessive tardiness and other violations of work rules. Claimant was warned about these infractions and placed on probation. Claimant was specifically told, on January 11, 1977, that future tardiness could lead to his immediate discharge. Nevertheless, on April 29, 1977, he was absent from work and failed to call in to report his absence. He was subsequently discharged.
Claimant attempts to characterize the warnings he received as being for tardiness only, but the referee found, and the record shows, that claimant was also warned about being unnecessarily absent from his work station as well as for other aspects of his conduct.
It is clear to us that an employee on probation who fails to report to work or to call in to explain his absence is guilty of willful misconduct. See, e.g., Azar v. Unemployment Compensation Board of Review, 34 Pa. Commw. 23, 382 A.2d 995 (1978) (employee who knows job is in jeopardy but fails to report reason for absence in proper manner is guilty of willful misconduct); Landis v. Unemployment Compensation Board of Review, 34 Pa. Commw. 140, 382 A.2d 1281 (1978). Claimant's attorney ably argues that claimant was not on probation for unexcused absences, but for tardiness. The only reason claimant gave for being absent, however, was that he slept through his entire scheduled shift, 12 midnight to 8 a.m. When claimant went to bed, he knew that he could well be discharged if he overslept even slightly, but he nevertheless failed to awake in time and, as a result, failed to report to work at all. His absence was, if anything, more serious in nature than simple tardiness. Although claimant's conduct had improved in the preceding 3 1/2 months, he knew, or should have known, that his job was still in jeopardy, and he should therefore have taken extra precautions to insure reporting to work on time. Having failed to do so, he cannot now complain that he had no notice of the possible consequences of his failure.
Claimant's argument that his discharge was in violation of the employer's policy not to discharge employees for only one unexcused absence must fail because claimant was not discharged simply for the one absence. See Roebuck v. Unemployment Compensation Board of Review, 33 Pa. Commw. 491, 382 A.2d 482 (1978). For the same reason, claimant's reliance on cases involving only a single, minor incident of misconduct, e.g., Williams v. Unemployment Compensation Board of Review, 32 Pa. Commw. 641, 380 A.2d 932 (1977), is misplaced.
ORDER
AND NOW, this 27th day of April, 1979, the order of the Unemployment Compensation Board of Review, dated November 28, 1977, affirming a referee's denial of unemployment compensation benefits to John W. Blefko, is hereby affirmed.