Summary
In Unemployment Compensation Board of Review v. Crilly, 25 Pa. Commw. 21, 358 A.2d 739 (1976), an employee was dismissed for absenteeism and tardiness. Claimant raised the issue concerning the lack of employer standards pertaining to the discharge of tardy employees.
Summary of this case from Cipriani v. Commonwealth, Unemployment Compensation Board of ReviewOpinion
Argued April 9, 1976
June 2, 1976.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Scope of appellate review — Error of law — Insufficient evidence — Availability — Evidentiary weight — Necessity for findings — Tardiness — Absenteeism — Good cause — Justification — Exclusion of evidence — Relevance — Employer standards.
1. An employe discharged for wilful misconduct is ineligible for benefits under the Unemployment Compensation Law, Act 1936 December 5, P.L. (1937) 2897. [23]
2. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is confined to questions of law and to determine whether the findings of the Unemployment Compensation Board of Review are supported by the evidence leaving to the Board questions of credibility and evidentiary weight. [23]
3. Whether actions of an employe constitute wilful misconduct is a question of law reviewable on appeal in an unemployment compensation case. [23]
4. When the Unemployment Compensation Board of Review fails to make findings on an issue raised asserting good cause or justification for actions alleged to constitute wilful misconduct, the case must be remanded for such findings. [23-4]
5. In an unemployment compensation case wherein an employe was discharged for alleged absenteeism or tardiness, the existence of employer standards regarding such matters and their enforcement are relevant considerations, and findings are required on the issue where conflicting testimony was received regarding such standards. [24-5]
Judge KRAMER did not participate in this decision.
Argued April 9, 1976, before JUDGES CRUMLISH, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 632 C.D. 1975, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Raymond J. Crilly, No. B-125462.
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: Remanded.
Roger J. Harrington, with him Elizabeth M. McKenna, and O'Brien O'Brien Associates, for appellant.
Charles G. Hasson, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
This is an appeal by Raymond J. Crilly (claimant) from an order of the Unemployment Compensation Board of Review (Board) denying his application for unemployment compensation benefits due to his discharge from a position as a bus driver for the Southeastern Pennsylvania Transportation Authority for allegedly "failing to fulfill his on-time and attendance obligations." The Board's determination was premised on an application to the facts 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), which provides in pertinent part:
"An employe 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. . . ."
Our scope of review here is confined to questions of law and, absent fraud, to whether the Board's findings are supported by the evidence. Questions concerning credibility and the weight to be given the evidence are for the Board. Unemployment Compensation Board of Review v. Devlin, 20 Pa. Commw. 162, 341 A.2d 221 (1975). The question of whether or not an employee's actions constitute willful misconduct is, of course, one of law and subject to our review. Unemployment Compensation Board of Review v. Walton, 21 Pa. Commw. 47, 343 A.2d 70 (1975).
Unfortunately for all of the parties involved, we are unable to exercise our review here because of numerous inadequacies in the Board's findings of fact.
One of claimant's basic contentions is that he should not have been found in violation of Section 402(e) because an earlier on-the-job accidental injury directly caused his inability to report on time. Evidence, although sparse in nature, was presented by both sides concerning the reasons for claimant's actions resulting in his dismissal. Our Supreme Court has recently ruled that the concept of good cause is, when raised, a necessary consideration in willful misconduct adjudications and therefore the Board should consider any justification presented by a claimant for his actions. See Frumento v. Unemployment Compensation Board of Review, ___ Pa. ___, 351 A.2d 631 (1976). The Board here failed to make any findings of fact on this crucial issue. This case must therefore be returned to the Board for such findings. See Sturniolo v. Unemployment Compensation Board of Review, 19 Pa. Commw. 475, 338 A.2d 794 (1975).
Claimant additionally complains of numerous hearing errors concerning the referee's alleged improper refusal to allow the subpoenaing and/or introduction of numerous records of the employer and the referee's alleged refusal to allow cross-examination of the employer's witnesses on certain points. At issue is the alleged lack of employer standards for the discharge of its tardy employees. It is further asserted that, if standards do in fact exist, they are unequally enforced. These contentions, of course, are relevant considerations in absentee cases. See Unemployment Compensation Board of Review v. Kerstetter, 21 Pa. Commw. 260, 344 A.2d 743 (1975); Unemployment Compensation Board of Review v. Schmid, 20 Pa. Commw. 286, 341 A.2d 553 (1975). Though we feel that the referee committed no procedural error in this case, we are nevertheless compelled to also remand the record for more explicit findings of fact on the existence or nonexistence of the standards. The Board failed to set forth any findings that would reveal exactly what rules were applicable to the claimant or how, under the facts as presented, such rules would apply to claimant's discharge. Since there was considerable conflicting testimony on these points, explicit findings are an absolute necessity to our ability to properly review the adjudication. See Unemployment Compensation Board of Review v. Grossman, ___ Pa. Commonwealth Ct. ___, 349 A.2d 779 (1976); Unemployment Compensation Board of Review v. Walton, supra.
If anything, the referee was overaccommodating in his willingness to accede to claimant's demands.
We therefore issue the following
ORDER
AND NOW, this 2nd day of June, 1976, the record is remanded to the Unemployment Compensation Board of Review for further proceedings not inconsistent with this opinion.
Judge KRAMER did not participate in the decision of this case.