Opinion
May 12, 1983.
Unemployment compensation — Burden of proof — Wilful misconduct — Scope of appellate review — Credibility — Incompetence.
1. Review by the Commonwealth Court of Pennsylvania in an unemployment compensation case, where the employer with the burden of establishing wilful misconduct did not prevail below, is limited to questions of law and a determination of whether findings of fact can be sustained without a capricious disregard of competent evidence. [297]
2. Evidence is not capriciously disregarded by the Unemployment Compensation Board of Review merely because as judge of credibility it accepts claimant's evidence as to the absence of a requirement to submit newsletter editorials to management for prior approval and rejects evidence to the contrary by the employer. [298]
3. Matters not mentioned in a notice of discharge nor raised in documents submitted to the Office of Employment Security can properly be held not to form the basis for a findings of wilful misconduct precluding receipt of unemployment compensation benefits by a discharged employe. [298]
4. Mere incompetence, inexperience or inability will not constitute wilful misconduct precluding receipt of unemployment compensation benefits by an employe discharged therefor. [298]
Submitted on briefs April 6, 1983, to Judges ROGERS, CRAIG and MacPHAIL, sitting as a panel of three.
Appeal, No. 1961 C.D. 1981, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Donna Lewis, No. B-196886.
Application with the Office 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.
Debora K. H. Sutch, Cohen Singer, for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Independent Products Company, Inc. (Employer) has brought this Petition for Review from a decision of the Unemployment Compensation Board of Review (Board) which found that Donna Lewis (Claimant) had not engaged in willful misconduct within the meaning of 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), and was eligible to receive unemployment compensation benefits.
Claimant was last employed as an Office Manager by the Employer; she was discharged on March 16, 1981. The reason given by Employer for the discharge was that Claimant published an editorial in the company newsletter, offensive to management, without the prior approval of Employer's company president. After a hearing, the referee determined that Claimant was not required to submit the complained-of article for pre-approval. The referee also found that Claimant had no intent to write an offensive article and that she had always worked to the best of her ability. The referee therefore held that Claimant had not committed any disqualifying conduct and was eligible for benefits. The Board subsequently adopted the referee's decision.
The burden of proving willful misconduct is on the Employer. See, e.g., Freedom Valley Federal Savings and Loan Association v. Unemployment Compensation Board of Review, 62 Pa. Commw. 332, 436 A.2d 1054 (1981). Where, as here, the party with the burden of proof has failed to prevail before the Board, our scope of review is limited to questions of law and to a determination of whether the Board's findings of fact can be sustained without a capricious disregard of competent evidence. See, e.g., Radio Station WVCH v. Unemployment Compensation Board of Review, 60 Pa. Commw. 23, 430 A.2d 737 (1981).
Employer complains that the Board erred in resolving in Claimant's favor the credibility conflict regarding whether she was ordered to submit the newsletter for pre-approval. Employer contends that Claimant contradicted herself and that the weight of the testimony was in Employer's favor. Such arguments, however, are unavailing before this Court. Questions of credibility and the weight to be given evidence are matters for the factfinders; in this case, the Board. Freedom Valley, 62 Pa. Commw. at 335, 436 A.2d at 1055. The resolution of conflicts in the testimony and the Board's decision to accept Claimant's version of events does not mean the Board capriciously disregarded Employer's case. See, Grzech v. Unemployment Compensation Board of Review, 56 Pa. Commw. 10, 17, 423 A.2d 1364, 1368 (1981).
Employer has also argued to us that Claimant was discharged for poor performance and unsatisfactory work attitude. However, these reasons for discharge were not even mentioned in the discharge notice given to Claimant by Employer nor in the documents presented by Employer to the Office of Employment Security. We can find no error by the Board in rejecting these asserted reasons as alternative grounds for discharge. See, Radio Station WVCH, 60 Pa. Commw. at 26, 430 A.2d at 739. We would note further that the Board, in resolving testimonial conflicts, determined that although Employer was dissatisfied with Claimant's work performance, Claimant had performed her work to the best of her ability. We have held that mere incompetence, inexperience or inability, while justifying discharge, will not constitute willful misconduct. See, e.g., Wetzel v. Unemployment Compensation Board of Review, 29 Pa. Commw. 195, 370 A.2d 415 (1977).
We affirm.
ORDER
The order of the Unemployment Compensation Board of Review, Decision No. B-196886, dated July 8, 1981, is hereby affirmed.