Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of LaVonne Dungan, No. B-148323-B.
John E. Childe, Chief Counsel, for petitioner.
Michael Klein, Assistant Attorney General, with him Gerald Gornish, Attorney General, for respondent.
Judges Crumlish, Jr., Blatt and Craig, sitting as a panel of three. Opinion by Judge Blatt.
[ 44 Pa. Commw. Page 280]
The Pennsylvania Department of Agriculture (employer) appeals to us from a decision of the Unemployment Compensation Board of Review (Board) that LaVonne Dungan (claimant) was qualified to receive benefits. The Board concluded that the claimant had not abandoned her employment, as asserted by the employer, or engaged in any conduct that could be considered willful misconduct under Section 402(e) of the Unemployment Compensation Law.*fn1 The employer challenges this conclusion.
The claimant had worked for the employer since February 1976 and had been absent without leave and on sick leave on a number of occasions. She had been reminded by memorandum that a doctor's certificate was required after three consecutive days of sick leave. She was thereafter reprimanded for tardiness and abuse of sick leave privileges and once again reminded of the doctor's certificate requirement. On October 25, 1976, she called in to report that she was not well enough to work, and when she had not appeared for work on November 3, her immediate supervisor telephoned her and reminded her that a doctor's certificate would be required in order for her absence to be approved. On November 8, her father called her supervisor and requested that she be placed on sick leave.*fn2 It was agreed that she would be back
[ 44 Pa. Commw. Page 281]
on December 13, but she did not appear on that date. Her father called again on December 15 or 16 and told her supervisor that she would be back to work on the following Monday, December 20. At that time the supervisor again expressed his concern that she had not yet obtained a medical excuse, and in a letter dated December 15, the employer attempted to inform the claimant that, because she had thus far failed to furnish a doctor's certificate, she would be placed on absent without leave on December 20 unless she returned to work by that time. This letter was sent to the claimant's Londonderry Road, Harrisburg, address which the employer had on its records. The claimant, however, had moved to another address in Dillsburg and, although she testified that she had left a forwarding address with the Postal Service, she also testified that she had never received the letter. She did not return to work on December 20, and neither she nor her father contacted the employer to explain where she was at that time. On January 17, 1977, the employer sent the claimant another letter, addressed in care of her father at his Second Street, Harrisburg, address informing her that her services were terminated effective January 4 because she had not reported to work and had not submitted a medical excuse.
[ 44 Pa. Commw. Page 282]
This Court has stated the rule many times that the failure to comply with an employer's absence policy constitutes willful misconduct, see, e.g., Gallagher v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 160, 380 A.2d 1325 (1977), particularly after a claimant has received a number of warnings, Beaverson v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 125, 382 A.2d 1277 (1978). See also Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 597, 309 A.2d 72 (1973). The claimant may still be eligible for benefits, however, if he or she can establish good cause for disregarding the employer's rule. See Holmshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979).
In the instant case, the Board found:
Due to an inadvertence in change of address and mail being delivered to her father's address, claimant did not receive a letter from the employer under date of December 15, 1976, directing her to report to work on ...