September 16, 1960
ALEXANDER UNEMPLOYMENT COMPENSATION CASE. STEERE'S DAIRY, INC., APPELLANT,
UNEMPLOYMENT COMPENSATION BOARD OF REVIEW.
Appeal, No. 210, April T., 1959, by employer, from decision of Unemployment Compensation Board of Review, No. B-48997-B, in re claim of Aurela Alexander. Decision reversed.
George J. Barco, with him Yolanda G. Barco and Barco and Barco, for employer, appellant.
Sydney Reuben, Assistant Attorney General, with him Anne X. Alpern, Attorney General, for Unemployment Compensation Board of Review, appellee.
Before Rhodes, P.j., Gunther, Wright, Woodside, Ervin, Watkins, and Montgomery, JJ.
[ 193 Pa. Super. Page 151]
OPINION BY ERVIN, J.
When this unemployment compensation case was here before we dismissed the appeal because it was taken too late: Alexander Unemployment Compensation Case, 191 Pa. Superior Ct. 301, 156 A.2d 573. The Supreme Court vacated this decision and remanded the record to us for disposition of the appeal on the merits: Alexander Unemployment Compensation Case, 398 Pa. 551, 159 A.2d 689.
The bureau found the claimant eligible for compensation. The referee reversed the bureau and found that the claimant was disqualified from receiving benefits under the provisions of § 402(e) of the Law, 43 PS § 802(e), making a claimant ineligible for compensation if he is discharged for willful misconduct connected with his work. The board on appeal reversed the referee and found that the claimant was discharged by her employer "because she was an unsatisfactory worker, and furthermore, because she did not agree to have a group picture taken by the employer for advertising or publicity purposes."
It is, of course, true that if a person is incompetent to perform her duties and is discharged for this reason she is nevertheless entitled to benefits: Ristis Unemployment
[ 193 Pa. Super. Page 152]
to bring about her discharge. This constituted a course of willful misconduct and disentitles her to benefits.
The finding that the claimant was discharged because she was an unsatisfactory employee is not supported by the credible evidence in this case. The failure of the board to find that the claimant was discharged because of her willful misconduct connected with her work under § 402(e) of the Act was in error.
Decision reversed and claim disallowed.
ING OPINION BY MONTGOMERY, J.:
I cannot conceive how one who has been hired as a bookkeeper may be charged with willful misconduct merely by asserting a personal right to privacy in refusing to have her picture taken for the purpose of advertising her employer's business. The right of privacy is an important one and when it is unwarrantedly invaded a right of action accrues. Aquino v. Bulletin Company, 190 Pa. Superior Ct. 528, 154 A.2d 422. To accomplish an unwarranted invasion by threat or duress is equally reprehensible. In my opinion, that is what is being condoned in this case by the majority of the Court in disallowing compensation to the claimant.
The action of claimant in refusing to have her picture taken may have been unco-operative, and irritating to her employer but in was not such willful misconduct as to render her ineligible for unemployment compensation under the act.
The record amply supports the finding of the Board that there were no other acts constituting willful misconduct.
I respectfully but emphatically dissent.
WATKINS, J., joins in this dissenting opinion.
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