Opinion
Argued December 7, 1978
February 21, 1979.
Unemployment compensation — Words and phrases — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Scope of appellate review — Questions of law — Findings of fact — Sufficient evidence — Credibility — Evidentiary weight — Inability to perform work — Decline in work quality.
1. An employe is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, when discharged for wilful misconduct, which is the wanton or wilful disregard of the employer's interest, a deliberate violation of rules, a disregard of expected behavior standards or acts showing intentional and substantial disregard of the employer's interest or the employe's obligation. [529]
2. In an Unemployment compensation case review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether findings of fact of the Unemployment Compensation Board of Review are supported by sufficient evidence, and questions of credibility and evidentiary weight are for the Board, not the reviewing court. [529-30]
3. The inability of a conscientious employe to perform assigned tasks is not wilful misconduct precluding the receipt of unemployment compensation benefits by an employe discharged therefor, but a decrease in work quality and the commission of numerous errors by an employe capable of performing satisfactory work may constitute wilful misconduct. [530-1]
Argued December 7, 1978, before Judges CRUMLISH, JR., MENCER and CRAIG, sitting as a panel of three.
Appeal, No. 1291 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Mary M. Kosmalski, No. B-144506.
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.
Dianne Upson, for petitioner.
William J. Kennedy, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.
The Bureau of Employment Security, the referee, and the Unemployment Compensation Board of Review (Board) have all ruled that Mary M. Kosmalski (claimant) is disqualified from receiving unemployment compensation benefits because of willful misconduct, by reason of the provisions 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).
The findings of the Board are not in dispute. Claimant was last employed by Habbersett Brothers, Inc., as an assistant bookkeeper at $167.50 per week. She had worked for this employer about three years and nine months, and her last day of work was September 10, 1976. At the time of her hiring as an assistant bookkeeper, claimant falsified her job application by stating she had graduated from a high school commercial program which included courses in bookkeeping. The admitted fact in this regard was that claimant had not graduated from high school. During the eight months prior to claimant's dismissal, her work had declined and numerous errors and needed corrections in her work were pointed out to her, but her work performance failed to return to its previous three-year satisfactory level.
The Legislature has not enunciated what actions constitute willful misconduct. Courts have concluded that the term includes acts of wanton or willful disregard of the employer's interest, deliberate violations of the employer's rules, conduct in disregard of standards of behavior which the employer has a right to expect, and acts showing intentional and substantial disregard of the employer's interest or the employee's duties and obligations. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 309 A.2d 165 (1973).
The credibility of the witnesses, the weight of their testimony, and the reasonable inferences to be drawn from it are for the Board. Our scope of review is confined to questions of law where, as here, the findings of the Board as to the facts are supported by the evidence and fraud is absent.
Thus, we are confronted with the question of whether claimant's inattention to her work constitutes willful misconduct as a matter of law. Not every employee who is discharged because his work is not satisfactory is ineligible for unemployment compensation benefits. A conscientious employee, because of limited ability, inexperience, or lack of coordination, may be unable to perform the duties of his employment to the satisfaction of his employer. If such a person is discharged, he is entitled to unemployment compensation benefits. Gagliardi Unemployment Compensation Case, 186 Pa. Super. 142, 141 A.2d 410 (1958). See Taylor Unemployment Compensation Case, 170 Pa. Super. 119, 84 A.2d 521 (1951).
In the instant case, the record discloses that the claimant's work performance as a bookkeeper had been totally satisfactory for the beginning three years of her employment and that her work had declined substantially during the eight months prior to her dismissal. Thus, this decline in work performance cannot be attributable to incompetence or inability to perform her work assignment. Despite the employer's pointing out numerous errors and needed corrections, claimant's quality of work never returned to its previous satisfactory level. Accordingly, this failure to work at her full proven potential must be construed as conduct showing intentional and substantial disregard of the employer's interest or of the employee's duties and obligations, i.e., willful misconduct.
The Board also offered as a reason for denying claimant benefits the fact that claimant falsified her job application for a bookkeeping position by misrepresenting the successful completion of high school and concluded that such was a material deception of claimant's capabilities and constituted willful misconduct. Since we hold that another issue is dispositive of the instant case, we do not pass upon this question here. However, in view of claimant's record of three years of totally acceptable and satisfactory work as a bookkeeper following her employment, we believe there is serious doubt as to the validity of this particular reason relied upon by the Board. See Unemployment Compensation Board of Review v. Dixon, 27 Pa. Commw. 8, 365 A.2d 668 (1976); cf. Secretary of Revenue v. John's Vending Corp., 453 Pa. 488, 309 A.2d 358 (1973) (a statute authorizing the denial of a cigarette dealer's license to a corporation, an officer of which had been convicted of a crime of moral turpitude held not to disqualify a corporation whose president had been convicted of such a crime nearly twenty years before the application for the license).
Consequently, we enter the following
ORDER
AND NOW, this 21st day of February, 1979, the order of the Unemployment Compensation Board of Review denying unemployment compensation benefits to Mary M. Kosmalski is hereby affirmed.