Opinion
September 12, 1983.
Unemployment compensation — Advising of rights — Need for counsel — Absences.
1. An unemployment compensation referee must advise unrepresented claimants of their right to secure counsel, to cross-examine adverse witnesses and offer witnesses, and the failure to give such advice is not harmless and requires remand when a crucial issue as to whether an absence precipitating discharge was justified could have been fully explored, developed and presented had counsel represented the claimant. [130-1]
Submitted on briefs May 12, 1983, to Judges WILLIAMS, JR., CRAIG and DOYLE, sitting as a panel of three.
Appeal, No. 2976 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In re: Claim of Richard J. Chapman, No. 200028.
Application to the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Order vacated and remanded.
John P. Bogdanovicz, with him Mark A. Schneider, for petitioner.
James K. Bradley, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Richard Chapman (Claimant) appeals from an Unemployment Compensation Board of Review (Board) order affirming a referee's benefit denial under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Claimant, a floor boy at a clothing factory, having amassed a record of absenteeism and tardiness with concomitant warnings and suspensions, was discharged after properly reporting his absence due to an alleged illness one day after having received a final warning regarding his absenteeism. The Board, concluding that Claimant's last absence was unjustified, affirmed that part of the referee's order denying benefits under Section 402(e) of the Law.
The referee, below, did not comply with 34 Pa. Code § 101.21(a) which directs a tribunal to advise unrepresented claimants of their right to secure counsel, to cross-examine adverse witnesses and to offer witnesses. Contending that the referee's omission precluded a full and fair adjudication of his claim by adversely affecting the presentation of his case, Claimant seeks a remand. See, Mayberry v. Unemployment Compensation Board of Review, 72 Pa. Commw. 611, 457 A.2d 182 (1983); Golden v. Unemployment Compensation Board of Review, 69 Pa. Commw. 439, 451 A.2d 573 (1982). The Board, however, perfunctorily argues that the referee's failure to apprise Claimant of his rights was harmless error, thus obviating the necessity for a remand. See, Snow v. Unemployment Compensation Board of Review, 61 Pa. Commw. 396, 433 A.2d 922 (1981); Robinson v. Unemployment Compensation Board of Review, 60 Pa. Commw. 275, 431 A.2d 378 (1981). We disagree.
In Robinson, the referee's omission constituted harmless error because of claimant's inculpatory testimony. Id. at 279-280, 431 A.2d at 380. Similarly, we concluded in Snow, that the referee's omission was not prejudicial inasmuch as the uncontroverted facts were presented clearly and concisely to the referee by claimant. Id. at 403, 433 A.2d at 925.
Both Robinson and Snow are inapposite to the case sub judice. In the "Summary of Interview" form and in appeal petitions filed from determinations of the Office of Employment Security and the referee, Claimant has alleged that partial disability resulting from a fractured right hand necessitated his last day of absence. Further, while not precisely asserting same before the referee, Claimant did state generally, without more, that he had a "legal excuse" for reporting off work. The referee failed to request further explanation pertinent to Claimant's alleged justification for reporting absent. Thus the Board in affirming the referee, concluded that Claimant, on the last absence, engaged in wilful misconduct for reporting off work without justification.
We note that a referee is required to give uncounseled claimants "every assistance compatible with the impartial discharge of [the referee's] official duties." 34 Pa. Code § 101.21(a) . (Emphasis added.)
Claimant, however, being unrepresented, was unable to establish, explore and develop fully the alleged relationship between his hand injury and his last absence. Absences are disqualifying only if unjustified or not properly reported according to employer's rules or directives. Pauline v. Unemployment Compensation Board of Review, 55 Pa. Commw. 267, 423 A.2d 55 (1980). Counsel's presence may have facilitated further exploration and development of the issue of Claimant's hand injury and the possible effect such condition had on Claimant's motives in reporting absent on his last work day. See, Mayberry; Golden.
We therefore conclude that the referee's failure to apprise Claimant of his right to counsel was prejudicial inasmuch as the omission adversely affected the presentation of Claimant's case.
Accordingly, we order a remand.
ORDER
AND NOW, this 12th day of September, 1983, the Order of the Unemployment Compensation Board of Review, dated October 7, 1981, at Decision No. B-200028, is vacated and the record is remanded for a new hearing consistent with this Opinion.
Jurisdiction relinquished.