Opinion
Argued February 5, 1979
May 7, 1979.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Absence — Illness — Narcolepsy — Findings of fact — Remand.
1. An employe discharged for wilful misconduct is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, and, although habitual absenteeism and tardiness can constitute wilful misconduct, absence from work due to illness does not. [449-50]
2. When the Unemployment Compensation Board of Review fails to make findings of fact on the question of the existence of the claimant's alleged condition of narcolepsy offered in justification for his tardiness and absenteeism which was held to constitute wilful misconduct, the case must be remanded for such findings and the resolution of that issue. [450]
Argued February 5, 1979, before Judges ROGERS, DiSALLE and MacPHAIL, sitting as a panel of three.
Appeal, No. 2205 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Thomas J. Cook, No. B-149801.
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: Order vacated. Case remanded.
Walter Walkenhorst, for petitioner.
Michael Klein, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.
We have here an appeal from an order of the Unemployment Compensation Board of Review (Board) affirming the referee's denial of benefits to Thomas J. Cook (Claimant) because of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802 (e). We remand.
Claimant worked for Thomas Jefferson University Hospital for approximately eight years, during which time a tendency to oversleep caused him to be continually absent or tardy. On October 22, 1976, Claimant was discharged after failing to report timely his preceding day's absence.
At the hearing before the referee, Claimant presented considerable evidence that he suffers from narcolepsy, a central nervous system disorder that renders him powerless to control a sudden and overwhelming desire to sleep. The referee, and subsequently the Board, apparently ignored this evidence, making no findings whatsoever on Claimant's alleged justification for his absence from work and his failure to timely report this absence.
It is axiomatic that absence from work due to illness does not constitute willful misconduct. Unemployment Compensation Board of Review v. Kells, 22 Pa. Commw. 479, 349 A.2d 511 (1975). Furthermore, since willful misconduct involves a deliberate disregard of the standards of behavior an employer can reasonably expect from his employes, the Board cannot determine that an employe's absence from work constitutes willful misconduct, unless it first considers the reasons advanced by that employe in justification of his conduct and makes findings of fact with regard thereto. Hughes v. Unemployment Compensation Board of Review, 40 Pa. Commw. 422, 397 A.2d 494 (1979); Curtis v. Unemployment Compensation Board of Review, 32 Pa. Commw. 462, 379 A.2d 1069 (1977); Unemployment Compensation Board of Review v. Crilly, 25 Pa. Commw. 21, 358 A.2d 739 (1976); Kells, supra. Since the Board made no findings of fact on whether Claimant did in fact suffer from narcolepsy, and, if so, whether this was the cause of his absences and tardiness, we will remand for a resolution of that issue.
ORDER
AND NOW, this 7th day of May, 1979, the order of the Unemployment Compensation Board of Review, dated September 30, 1977, denying benefits to Thomas J. Cook, is hereby vacated, and the record is remanded for further proceedings consistent with this opinion.