Summary
In Pettey v. Unemployment Compensation Board of Review, 15 Pa. Commw. 157, 325 A.2d 642 (1974), we described five circumstances suggesting misconduct in absence from employment: excessive absences, failure to notify the employer in advance of an absence, lack of good cause for an absence, failing to observe the employer's rule concerning absences and disregard of warnings of excessive absences.
Summary of this case from Rose v. Unempl. Comp. Bd. of ReviewOpinion
Argued September 10, 1974
September 27, 1974.
Unemployment compensation — Voluntary termination — Cause of necessitous and compelling nature — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Words and phrases — Wilful misconduct — Absences — Notice to employer — Warning — Employer rules.
1. An employe terminated for wilful misconduct or voluntarily leaving work without cause of necessitous and compelling nature is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [158]
2. Wilful misconduct such as to disqualify an employe from receipt of unemployment compensation benefits is the wanton and wilful disregard of the employer's interest, the deliberate violation of rules, the disregard of behavior standards which the employer can expect or negligence manifesting culpability, wrongful intent, evil design or intentional and substantial disregard of the employer's interests or the employe's duties and obligations. [159]
3. An employe is not guilty of wilful misconduct when he absents himself from work for two days because of insufficient funds to buy fuel for his automobile to transport himself to work, when he has given timely notice to his employer of his absence and the cause thereof, received no warning from his employer and violated no rule of his employer by such conduct. [159-60]
Argued September 10, 1974, before Judges CRUMLISH, JR., WILKINSON, JR. and ROGERS, sitting as a panel of three.
Appeal, No. 599 C.D. 1972, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Lonnie W. Pettey, No. B-112814.
Application to 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: Reversed and remanded.
Louis M. Shucker, with him Eugene F. Zenobi, Alan N. Linder and J. Richard Gray, for appellant.
Sydney Reuben, Assistant Attorney General, with him Israel Packel, Attorney General, for appellee.
Appellant-claimant had been employed for approximately eleven years by the same employer. On two successive days appellant-claimant was unable to get to work because he did not have sufficient funds to buy gasoline. On each day his wife called the employer to report that he would be unable to get to work. She called in each instance well in advance of the time he was due to report. Appellant-claimant then traded some tools to obtain gasoline and returned to work on the third day, but was informed his employment was terminated.
When appellant-claimant applied for unemployment compensation, the Bureau of Employment Security denied the claim under Section 402(b)(1) of the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, as amended, 43 P. S. § 802 (b)(1), voluntarily leaving work without cause of a necessitous and compelling nature. The referee affirmed. On further appeal to the Unemployment Compensation Board of Review, the decision was affirmed that appellant-claimant was ineligible, but not under the provisions of Section 402(b)(1), but rather under the provisions of Section 402(e), 43 P. S. § 802 (e), discharge for wilful misconduct.
Even a casual review of this record establishes clearly that it will not support a finding that appellant-claimant was ineligible under either of these sections. As the Board found, he obviously had not quit. The Bureau and the referee seem to have been misled by the employer's claim that appellant had quit. However, it is significant that the employer did not appear at the hearing to contradict in any way the credible testimony of appellant-claimant.
In Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 97, 309 A.2d 165, 168-69 (1973), Judge KRAMER set forth the definition of wilful misconduct established by the cases: "For behavior to constitute wilful misconduct, it must evidence (1) the wanton and wilful disregard of the employer's interest, (2) the deliberate violation of rules, (3) the disregard of standards of behavior which an employer can rightfully expect from his employe, or (4) negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations." Neither this record, which is totally devoid of any evidence on the part of the employer challenging or contradicting the evidence of the appellant-claimant, nor the Board's findings of fact will support the Board's conclusion of law that appellant-claimant was disqualified under Section 402(e).
An analysis of the recent cases in which this Court has affirmed the Board's conclusion that absenteeism could be considered wilful misconduct establishes that in every instance there was much more than appears in this record. These additional elements were accurately summarized in the able brief of appellant-claimant as follows:
"1. Excessive absences.
"2. Failure to notify the employer in advance of the absence.
"3. Lack of good or adequate cause for the absence.
"4. Disobedience of existing company rules, regulations, or policy with regard to absenteeism.
"5. Disregard of warnings regarding absenteeism." See Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commw. 597, 309 A.2d 72 (1973), where Judge MENCER assembles the cases. Here there is no evidence of excessive absenteeism; there is affirmative evidence that the employer was timely notified in each of the two instances; the cause of the absence was explained at the time to the employer and at the hearing and remained unrefuted, i.e., lack of funds for gasoline; there was no evidence of a company rule or policy on absenteeism; there was no evidence of any warnings.
Accordingly, we enter the following
ORDER
NOW, September 27, 1974, the order of the Unemployment Compensation Board of Review, dated May 17, 1972, in the above matter is reversed and the record is remanded to the Board for disposition consistent with this opinion.