Summary
holding that the claimant's tardiness resulting in termination was not willful misconduct because the employer's policy advised that employees would be terminated after receiving three "two days off without pay" penalties, but the claimant had only received one "two days off without pay" penalty
Summary of this case from Zimmerman v. Unemployment Comp. Bd. of ReviewOpinion
July 16, 1975.
Unemployment compensation — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Words and phrases — Wilful misconduct — Tardiness — Violation of rules — Interest of employer.
1. An employe discharged for wilful misconduct connected with his work is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897. [287-8]
2. Wilful misconduct such as to disqualify one discharged therefor 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 an employer can rightfully expect or negligence such as to manifest culpability, wrongful intent, evil design or an intentional and substantial disregard for the employer's interests or the employe's duties. [289-90]
3. Although habitual tardiness could constitute wilful misconduct precluding the receipt of unemployment compensation benefits by an employe discharged therefor, such tardiness does not constitute wilful misconduct when the discharged employe had not committed the number and type of violations required for his discharge under specific rules established by the employer which governed tardiness and which indicated what degree of tardiness was so inimical to the employer's interest as to warrant discharge. [290-1]
Submitted on briefs, June 6, 1975, to Judges WILKINSON, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 1283 C.D. 1974, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Stephen E. Schmid, No. B-122939.
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.
Ronald I. Rosenstein, with him, of counsel, Rosenstein Kleitman, for appellant.
Daniel R. Schuckers, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Claimant-appellant has been ruled ineligible to receive unemployment compensation benefits 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), by the Bureau of Employment Security, the referee, and the Unemployment Compensation Board of Review. Section 402(e) provides in part:
"An employee shall be ineligible for compensation for any week —
. . . .
"(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work,. . . ."
The evidence reveals that claimant had worked as a spray gun operator for Fabuglass, Inc., for approximately 15 months prior to March 29, 1974, the date his employment there was terminated. At least during the last six months of his employment and apparently for an even longer period, claimant had been constantly late for work — as late as an hour to an hour and a half each day. Many of the other 15 or 20 shop employees were also regularly late for work. As a result, on January 16, 1974, the plant manager made up and posted the following shop rules over his name:
"January 15, 1974
"SHOP RULES
"1. Work starts at 8:00 a.m.
"2. Anyone starting after 8:15 a.m. will be docked 1 hour.
"3. No one will work past 4:30 p.m. without my permission.
"4. Anyone with three 1 hour penalties in a 30 day period (not 30 working days but 30 calendar days) will get two days off without pay.
"5. Anyone getting a third 'two days off without pay' penalty in a six month period will get the shoe.
"6. Breaks will be 15 minutes long only.
"7. Lunch will be 30 minutes long only.
"8. All employees will call in everytime they will be absent or legitimately late.
"9. Anyone who forgets to call in twice during a 30 day period will get two days off without pay.
"10. All employees will have a daily assignment and unless told otherwise will stay on the job.
"11. Everyone will stop working 15 minutes early for shop clean-up. This will include: Putting tools away, cleaning rollers brushes, replacing dirty solvent with clean solvent, wiping clean the entire chopper and gel-coat systems, replacing blades and rollers if necessary in chopper and gel-coat systems" (Emphasis in original.)
Claimant continued to arrive late for work. Sometimes he was docked one hour's pay and sometimes he was not. Claimant had received one "two days off without pay" penalty approximately two weeks prior to March 29, 1974, and was warned at that time that he would be discharged if he continued to be in violation of the shop rules. On March 29, claimant was again late for work. At the end of that work day, claimant's employment was terminated. Claimant alleges that he was laid off; the plant manager stated that claimant was discharged for his constant tardiness.
The Board of Review, after stating the definition of willful misconduct that we set forth in Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commw. 90, 309 A.2d 165 (1973), held that "claimant's conduct in reporting for work late, especially after receiving numerous warnings constitutes willful misconduct in connection with his work." In Kentucky Fried Chicken, supra, 10 Pa. Commw. at 97, 309 A.2d at 168-69, we said:
"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 employee, 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."
Normally, constant tardiness would clearly fall within numbers (1) and (3) above. Harbutz v. Unemployment Compensation Board of Review, 10 Pa. Commw. 235, 309 A.2d 840 (1973). In the instant case, however, the employer has told its employees by means of the shop rules what standards of behavior it expects, and what the employee could expect for violations of those rules. Although claimant continued to arrive late for work, he had only been given one "two days off without pay" penalty and, therefore, under these circumstances, cannot be said to be guilty of willful misconduct. In Morris Unemployment Compensation Case, 203 Pa. Super. 122, 198 A.2d 629 (1964), the employer had a regulation stating that three days' absence from work without notification to the employer would be grounds for discharge. The claimant there was discharged after two days' absence. In ruling that the claimant was not guilty of willful misconduct, the Superior Court said: "Management here advised employees that notice of absences was not a violation unless continued in for three working days. The burden of keeping the employment relationship alive is certainly a duty of the employee and absenteeism ordinarily is an intentional disregard of the employer's interest and amounts to willful misconduct. In this case, however, the promulgation of the rules was notice to the employee that the employer would not consider absenteeism inimicable to his interest unless continued in for a period of three working days. Under such circumstances, this claimant was not a voluntary quit and could not be adjudged guilty of a reckless disregard of his duty to his employer." Morris, supra, 203 Pa. Super. at 125, 198 A.2d at 630.
In the instant case, the employer gave notice that although tardiness was inimicable to its interest, it was not sufficiently inimicable to result in discharge until the employee had received three "two days off without pay" penalties.
We hold that the Board erred as a matter of law in determining that the conduct for which claimant was discharged constituted willful misconduct. Moreover, the record supports claimant's contention that he was in fact laid off. The plant manager testified that claimant's termination was amicable and that the plant manager never used the word "fired," but rather spoke in terms of "laying him [claimant] off." The evidence indicates that claimant was told by the plant manager to apply for unemployment compensation and to check back with the employer for possible part-time work.
Accordingly, we enter the following
ORDER
NOW, July 16, 1975, the order of the Unemployment Compensation Board of Review, dated September 4, 1974, denying benefits to claimant, Stephen E. Schmid, is reversed and the record is remanded for a determination of the amount of compensation due claimant.