Opinion
Argued September 8, 1980
October 27, 1980.
Unemployment compensation — Wilful misconduct — Tardiness — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Illness — Justification — Insufficient findings — Remand.
1. Tardiness without good cause particularly after warnings as to the consequences of such conduct may properly be held to constitute wilful misconduct precluding receipt of benefits under the Unemployment Compensation Law, Act, 1936, December 5, P.L. (1937) 2897, by an employe discharged therefor, but illness could constitute a justification for such tardiness, and, when such an excuse is advanced by the party seeking benefits, findings on that issue must be made on that issue. [365]
2. A case must be remanded to the Unemployment Compensation Board of Review when the Board fails to render adequate findings on an issue crucial to the decision. [366]
Judge WILLIAMS, JR. concurred in the result only.
Argued September 8, 1980, before President Judge CRUMLISH and Judges MacPHAIL and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 908 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Derrick Fields, No. B-171118.
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.
Terry L. Fromson, for petitioner.
Karen Durkin, Assistant Attorney General, with her James K. Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
Derrick Fields appeals an Unemployment Comsation Board of Review Order denying him benefits because of willful misconduct under 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 remand.
During Fields' ten-month employment with the Institute of Pennsylvania Hospital (Institute), he reported late for work on 28 occasions. He had been repeatedly warned and had once been suspended. On July 21, 1979, he was notified in writing that his job would be terminated if he sustained three subsequent late reports. Fields was late again four more times and was terminated. Fields contends he was not in willful violation because two occasions were illness-provoked.
"There is no question that tardiness, without good cause, especially when accompanied by past violations and warnings, constitutes willful misconduct." Spicer v. Unemployment Compensation Board of Review, 47 Pa. Commw. 272, 407 A.2d 929 (1979), Bowers v. Unemployment Compensation Board of Review, 38 Pa. Commw. 171, 392 A.2d 890 (1978). It is also clear that absence from work because of illness in and of itself does not constitute willful misconduct. Gardner v. Unemployment Compensation Board of Review, 29 Pa. Commw. 548, 372 A.2d 38 (1978), Unemployment Compensation Board of Review v. Kells, 22 Pa. Commw. 479, 349 A.2d 511 (1975).
To constitute willful misconduct, the fact of illness must be accompanied by other circumstances. In Gardner, we held that an illness which wasn't reported to an employer as required was willful misconduct.
In order for this Court to properly exercise its appellate review, the Board must make adequate findings of fact so as to resolve issues raised by the evidence. Miller v. Unemployment Compensation Board of Review, 52 Pa. Commw. 151, 415 A.2d 454 (1980), Curtis v. Unemployment Compensation Board of Review, 32 Pa. Commw. 462, 379 A.2d 1069 (1977). As we have said in the past, justification advanced by a claimant for his conduct is a crucial issue which the Board must resolve. Taylor v. Unemployment Compensation Board of Review, 49 Pa. Commw. 59, 410 A.2d 400 (1979). Here, Fields offered illness as an explanation for his lateness The record establishes that Fields sought and received medical attention during the time in which he was charged with being late. The Board, however, made no findings as to whether the alleged illness prevented Fields from being on time for work. As the issue of illness, if credible, lends itself to justification, it must be resolved by the Board.
Order vacated and remanded.
ORDER
The Order of the Unemployment Compensation Board of Review, dated April 13, 1979, is vacated, and the record is remanded for the making of additional and more specific findings of fact and a new order.
Judge WILLIAMS, JR., concurs in the result only.