Summary
holding that the claimant established good cause for violation of a work rule based on a family emergency
Summary of this case from Carl's Farm Eggs v. Unemployment Comp. Bd. of ReviewOpinion
Argued December 12, 1980
March 18, 1981.
Unemployment compensation — Voluntary termination — Discharge — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897 — Substantial evidence — Credibility — Finality — Wilful misconduct — Burden of proof — Tardiness — Notice to employer — Emergency.
1. Whether an employe was discharged or voluntarily terminated employment is a question of law in an unemployment compensation case dependent upon facts found by the factfinder, and such facts must be accepted by the reviewing court when supported by substantial evidence, as matters credibility and the resolution of conflicting testimony is for the factfinder. [585-6]
2. An employe may properly be found to have been discharged when a communication from the employer to the employe exhibits immediacy and finality when advising the employe not to return under certain circumstances. [586]
3. The burden of proving that an employe's discharge was for wilful misconduct precluding her receipt of benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, is upon the employer. [587]
4. An employe, who is less than thirty minutes late for work on two occasions without giving prior notice to the employer, is properly found to be not guilty of wilful misconduct precluding her receipt of unemployment compensation benefits when she is discharged as a result, when the tardiness was the result of an unexpected, unforeseen emergency arising just before the employe was to leave for work when no reasonable opportunity existed to notify the employer. [587-8]
Argued December 12, 1980, before Judges WILKINSON, JR., WILLIAMS, JR. and PALLADINO, sitting as a panel of three.
Appeal, No. 1440 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Deborah A. Garrett, No. B-170796-B.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed. Benefits awarded by referee. Employer appealed to the Unemployment Compensation Board of Review. Award affirmed. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
John J. Connors, Jr., for petitioner.
William J. Kennedy, Assistant Attorney General, with him Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Petitioner, an employer, appeals the June 13, 1979, order of the Unemployment Compensation Board of Review (Board) which affirmed a referee's decision granting unemployment compensation benefits to Claimant, Petitioner's former employee.
On March 10, 1978, Petitioner hired Claimant as an office assistant and told Claimant that her starting time was 8:30 a.m. Petitioner then put Claimant under the direction of an office worker who appeared to be the office manager and who advised Claimant to report to work between 8:45 a.m. and 9:00 a.m. Claimant signed the office time sheets accordingly, and the sheets were received by Petitioner. At approximately 8:20 a.m. on July 10, 1978, Claimant received a hysterical telephone call from her sister, indicating that the sister's son was injured in an accident and was in critical condition. As a result of this call Claimant arrived at work at approximately 8:45 a.m. Petitioner requested an explanation for Claimant's tardiness and then warned Claimant either to report to work at 8:30 a.m. or to notify Petitioner in advance of any future lateness. On the morning of July 11, 1978, Claimant again received a hysterical telephone call from her sister, this time indicating that the sister's son had suffered cardiac arrest. As a result of this call Claimant arrived at work between 8:45 a.m. and 9:00 a.m. without having previously notified Petitioner of her late arrival. Claimant worked until approximately noon at which time Petitioner questioned Claimant's late arrival, and Claimant explained her family emergency. At this point Petitioner made a statement to Claimant, which statement is the subject of this appeal.
Petitioner asserts that on July 11, 1978, Petitioner warned Claimant not to continue arriving to work late without giving Petitioner prior notice of tardiness. Allegedly, Petitioner stated, "If you are going to be late without notification beforehand, please don't come any more." Claimant contends that on July 11, 1978, Petitioner fired Claimant despite Claimant's having told Petitioner of Claimant's family medical emergency. Allegedly, Petitioner said Claimant should never come back to the office.
Following Petitioner's disputed statement to Claimant, Claimant finished her office work, left the office, and did not return to the office after the lunch period.
The Bureau of Employment Security deemed Claimant ineligible for benefits under Section 402(b)(1) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(b)(1), for having voluntarily terminated her employment with Petitioner without cause of a necessitous and compelling nature. Following Claimant's appeal and a hearing, the referee held that Claimant was discharged from her employment and was, in the absence of willful misconduct, entitled to benefits under Section 402(e) of the Law, 43 P. S. § 802(e). Upon Petitioner's appeal, the Board reversed the referee's decision and ruled that under Section 402(b)(1) of the Law Claimant could not receive benefits because she had voluntarily quit without cause. Upon Claimant's request for reconsideration, the Board concluded on June 13, 1979, that Claimant was involuntarily separated from her employment but was not discharged for willful misconduct. Therefore, the Board held that Claimant was entitled to benefits under Section 402(e) of the Law. Petitioner now appeals the June 13, 1979, decision of the Board.
Whether Claimant voluntarily terminated her employment with Petitioner is a question of law subject to review by this Court and dependent upon the facts found by the compensation authorities. Taylor v. Unemployment Compensation Board of Review, 49 Pa. Commw. 59, 410 A.2d 400 (1980); Bowman v. Unemployment Compensation Board of Review, 49 Pa. Commw. 170, 410 A.2d 422 (1980); Season All Industries, Inc. v. Unemployment Compensation Board of Review, 41 Pa. Commw. 269, 398 A.2d 1092 (1979); Tyler v. Unemployment Compensation Board of Review, 39 Pa. Commw. 534, 395 A.2d 1045 (1978). "[T]he findings of the Board . . . are conclusive if supported by substantial evidence, giving to the party who prevailed before the Board the benefit of every inference which can logically and reasonably be drawn from the record." Season All Industries, Inc., 41 Pa. Commw. at 272, 398 A.2d at 1094 (citation omitted).
"[F]or an employee to be fired or discharged, the employer need not use those exact words in speaking to the employee." Rizzitano v. Unemployment Compensation Board of Review, 32 Pa. Commw. 59, 61, 377 A.2d 1060, 1061 (1977). The language used by the employer in addressing the employee must, however, exhibit both immediacy and finality. Bowman, supra; Rizzitano, supra. In the instant case Claimant alleged that Petitioner told Claimant never to return to the office while Petitioner alleged that Claimant was warned not to return if Claimant intended to continue being tardy without prior notice to Petitioner as requested. "[Q]uestions of credibility, resolution of conflicts in the evidence presented, and a determination of the weight to be given the evidence are matters for the Board to determine." Bowman, 49 Pa. Commw. at 173, 410 A.2d at 423 (citation omitted). Faced with a particularly close fact pattern and the very narrow issue of ascertaining and interpreting what Petitioner actually said to Claimant on July 11, the Board ultimately accepted Claimant's testimony and found that Claimant was discharged from employment. Substantial evidence in the record examined by this Court, supports the Board's conclusion that Claimant was involuntarily unemployed because Claimant's unemployment did not emanate from her own action or volition, but rather, from the action of Petitioner. Hammerstone v. Unemployment Compensation Board of Review, 32 Pa. Commw. 256, 378 A.2d 1040 (1977); Strelinski v. Unemployment Compensation Board of Review, 28 Pa. Commw. 65, 367 A.2d 330 (1976).
Since the determination that Claimant was dismissed is inconsistent with Petitioner's contention that Claimant left work of her own accord, we dispense with a consideration of Petitioner's additional argument that Claimant left work without cause of a necessitous and compelling nature and is thus ineligible for benefits under Section 402(b)(1) of the Law.
"While the burden of proof in voluntary quit cases places the laboring oar on the claimant initially, once the claimant shows actual discharge, it must be determined whether the claimant's conduct constituted willful misconduct within the meaning of Section 402(e) of the Law. . . ." Season All Industries, Inc., 41 Pa. Commw. at 273, 398 A.2d at 1094. In cases of willful misconduct, "the burden is on the employer to prove the rule and the fact of its violation. However, if the employee . . . attempts to justify the violation, the employee then has the burden of establishing good cause." Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commw. 503, 505, 395. A.2d 708, 709 (1979).
In the present case the Board found that Petitioner informed Claimant on July 10, 1978, that Claimant was to be present in the office by 8:30 a.m. or was to provide Petitioner with prior notice of tardiness. The Board also determined that on July 11, 1978, Claimant reported to work between 8:45 a.m. and 9:00 a.m. without advance notice to Petitioner of her late arrival. Nevertheless, because the Board concluded that Claimant had good cause for the July 11 noncompliance with Petitioner's rule requiring either prompt arrival at 8:30 a.m. or prior notice of lateness, the Board deemed Claimant eligible for compensation benefits. Department of Agriculture v. Unemployment Compensation Board of Review, 44 Pa. Commw. 279, 403 A.2d 237 (1979). The Board's conclusion and award of benefits to Claimant are supported by substantial evidence in the record as reviewed by this Court, since Petitioner's rule, although reasonable on its face, was unreasonably applied by Petitioner to Claimant under the circumstances of this case. While Petitioner's rule reasonably applies to situations where an employee can anticipate an absence or a delay and therefore has an opportunity to notify Petitioner beforehand, Petitioner's rule cannot reasonably apply to situations where an unexpected and unforeseeable occurrence such as Claimant's family medical emergency, delays an employee's arrival and does not afford the employee an adequate opportunity to notify Petitioner. Moreover, this is not a case where an employee has abused a situation by being absent for several hours or days without explanation or notice to the employer. Here it is undisputed that Claimant reported to work on July 11 immediately after her sister's hysterical telephone call, arrived at work only fifteen to thirty minutes late, and explained the cause of her delayed arrival to Petitioner.
Because Claimant had the burden of establishing good cause and prevailed before the Board, this Court "must determine on appeal whether an error of law has been committed and whether any necessary finding of fact is unsupported by substantial evidence in the record." Lake v. Unemployment Compensation Board of Review, 48 Pa. Commw. 138, 140, 409 A.2d 126, 127 (1979) (citations omitted).
Accordingly, we will enter the following
ORDER
AND NOW, March 18, 1981, the order of the Unemployment Compensation Board of Review, dated June 13, 1979, Decision No. B-170796-B, Appeal No. B-78-2-E-1094, is hereby affirmed.