Opinion
Argued June 4, 1979
July 25, 1979.
Unemployment compensation — Due process — Duty of referee — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Wilful misconduct — Absenteeism — Violation of rules.
1. A referee in unemployment compensation proceedings is not required by principles of due process to assist a claimant to the extent that the impartial discharge of his duty would be compromised. [422]
2. Repeated absences by an employe without providing the notice to the employer required by the rules of the employer and after being warned of the consequences of such behavior are properly found to constitute wilful misconduct precluding the receipt of benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 when the employe is discharged as a result of such conduct. [422]
Argued June 4, 1979, before Judges WILKINSON, JR., ROGERs and MacPHAIL, sitting as a panel of three.
Appeal, No. 2477 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Julius Horvath, No. B-150747.
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.
Katherine F. Bryant, with her Rosalie Simmonds, for appellant.
Gary Marini, Assistant Attorney General, with him James K. Bradley, Assistant Attorney General, Daniel R. Schuckers, Assistant Attorney General, Richard Wagner, Assistant Attorney General, and Edward G. Biester, Attorney General, for appellee.
Julius Horvath appeals from an order of the Unemployment Compensation Board of Review affirming a referee's determination that he was ineligible for benefits because his unemployment was due to his discharge for 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 affirm.
Mr. Horvath, who was last employed by the Albert Einstein Medical Center as a mechanic, was absent from work during the period of April 19, 1977 to April 28, 1977. He reported his intended absence on April 19 and 20, but was not in touch with his employer again until April 28 when he presented a doctor's certificate stating that he had had an attack of gout. Claimant had been given three prior written warnings concerning his failure to notify his employer of absences. He was discharged from his employment for failure to call in sick every day he was to be absent — a requirement imposed by the employer in its handbook of rules given to Mr. Horvath.
The appellant contends that he was denied due process of law at the hearing because the referee failed to advise him of his right to counsel, of the nature of the proceedings, of the "relative burden of proof" or of the law in the field of unemployment compensation relating to excessive absenteeism. Similar arguments were considered and rejected in Gonzalez v. Unemployment Compensation Board of Review, 39 Pa. Commw. 70, 395 A.2d 292 (1978). Neither considerations of due process nor regulations governing the conduct of hearings found at 34 Pa. Code § 101.21 require the referee to assist claimants in a manner incompatible with the impartial discharge of the referee's duties. After carefully reviewing the record, we discern no violation of the appellant's constitutional rights or Department regulations.
Appellant's brief complains that the referee failed to advise the claimant that he was required to "develop a case demonstrating lack of willful misconduct." Such advice would, of course, have been erroneous.
The appellant's further argument that willful misconduct was not proved is without merit. Its thesis is that an employee may not be denied compensation based on absenteeism caused by illness. The claimant was not discharged for being ill or for being absent while ill. He was discharged for failing, with respect to at least five days of absence, to report off, as his employer's written rules provided him required.
Order affirmed.
ORDER
AND NOW, this 25th day of July, 1979, the order of the Unemployment Compensation Board of Review, No. B-150747 dated November 4, 1977, is hereby affirmed.