Opinion
No. 1483 C.D. 2012
04-08-2013
Karl E. White, Petitioner v. Unemployment Compensation Board of Review, Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ANNE E. COVEY, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Karl E. White (Claimant) challenges the order of the Unemployment Compensation Board of Review (Board) which affirmed the referee's denial of benefits under Section 402(e) of the Unemployment Compensation Law (Law).
Act of December 5 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).
The facts, as found by the Board, are as follows:
1. The claimant was last employed as a full-time operator by Mobile Dredging and Plumbing Company from March 9, 2010 at a final rate of $15.75 per hour and his last day of work was December 13, 2011.Board Decision, May 29, 2012, (Decision), Findings of Fact Nos. 1-7 at 1-2.
2. The employer maintains a policy, of which the claimant was aware, that requires employees to notify the employer whenever they will not report for work as scheduled.
3. The employer has provided a 24-hour answering service for this purpose.
4. The claimant was scheduled to work on December 14, 2011, December 15, 2011, and December 16, 2011, but did not report for work, nor notify the employer that he would not appear to work as scheduled.
5. The claimant alleges that he was ill and unable to report for work.
6. On December 19, 2011, the claimant called in to determine if work was scheduled for that day. The employer said no work was scheduled.
7. On December 20, 2011, the employer discharged the claimant for failing to notify the employer that he would not report for work on December 14, 2011, December 15, 2011, and December 16, 2011.
The Board determined that Claimant committed willful misconduct:
The employer testified credibly that it has a policy requiring employees to notify the employer whenever they are unable to report for work as scheduled. The employer provides a 24-hour answering service for this purpose. The claimant was, or should have been, aware of the employer's policy.Decision at 2.
. . . .
In this matter, the claimant alleges that he was ill and provided a doctor's note to justify his absence from December 14-16, 2011. However, the claimant has not provided testimony or evidence to support a finding that he had good cause for his failure to notify the employer in advance that he would be unable to report for work as scheduled. Insofar as the claimant did not contact the employer between December 14, 2011 and December 16, 2011, the Board cannot conclude that he had good cause for violating the employer's policy. For this reason, benefits are denied under Section 402(e).
Claimant contends that the Board erred when it determined that he committed willful misconduct because Mobile Dredging and Plumbing Company (Employer) had a progressive discipline policy and he should have received a penalty less than a discharge for his failure to report his upcoming absence.
This Court's review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or essential findings of fact were not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 637 A.2d 695 (Pa. Cmwlth. 1994). --------
Whether a Claimant's conduct rises to the level of willful misconduct is a question of law subject to this Court's review. Lee Hospital v. Unemployment Compensation Board of Review, 589 A.2d 297 (Pa. Cmwlth. 1991). Willful misconduct is defined as conduct that represents a wanton and willful disregard of an Employer's interest, deliberate violation of rules, disregard of standards of behavior which an Employer can rightfully expect from the employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the Employer's interest or employee's duties and obligations. Frick v. Unemployment Compensation Board of Review, 375 A.2d 879 (Pa. Cmwlth. 1977). The Employer bears the burden of proving that it discharged an employee for willful misconduct. City of Beaver Falls v. Unemployment Compensation Board of Review, 441 A.2d 510 (Pa. Cmwlth. 1982). The Employer bears the burden of proving the existence of the work rule and its violation. Once the Employer establishes that, the burden then shifts to the Claimant to prove that the violation was for good cause. Peak v. Unemployment Compensation Board of Review, 509 Pa. 267, 501 A.2d 1383 (1985).
Claimant does not argue that Employer did not have a policy which required him to report that he would be absent, that he was unaware of the policy, that he did not violate the policy or that he had good cause to violate the policy. Claimant's sole argument is that because Employer's expressed policy was that the penalty for his violation was less than discharge, he did not commit willful misconduct.
Employer's policy states that the penalty for a first offense of "inexcusable misconduct" is "suspension or discharge depending on severity." Employee Guide, Company Policies and Rules, (Guide) at 13. One of the examples of Inexcusable Misconduct is "Unauthorized absence on three (3) consecutive days." Guide at 13. The Board found as fact that Claimant was scheduled to work on December 14-16, 2011, and failed to report to work or notify Employer that he would be absent. Contrary to Claimant's assertion, Employer followed its disciplinary policy when it discharged Claimant.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 8th day of April, 2013, the order of the Unemployment Compensation Board of Review in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge