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SHARON FLANAGAN v. COMMONWEALTH PENNSYLVANIA (10/31/79)

decided: October 31, 1979.

SHARON FLANAGAN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Sharon Flanagan, No. B-153855-B.

COUNSEL

Stuart A. Cilo, for petitioner.

John T. Kupchinsky, Assistant Attorney General, with him Edward G. Biester, Jr., Acting Attorney General, for respondent.

Judges Mencer, DiSalle and MacPhail, sitting as a panel of three. Opinion by Judge DiSalle.

Author: Disalle

[ 47 Pa. Commw. Page 121]

Sharon Flanagan (Claimant) appeals the decision of the Unemployment Compensation Board of Review (Board) reversing a referee's decision, and denying benefits by reason of its determination that Claimant was discharged for willful misconduct within the meaning 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. ยง 802(e). In addition to the question of willful misconduct, we are presented with the issue of whether the Board acted properly in agreeing to reconsider its decision.

Claimant was discharged from her work on December 6, 1977, for accumulating three unexcused absences during her probationary period with Danville Cabinet Industries, Inc. (Employer). She filed for benefits the same day. On December 17, 1977, the Bureau of Employment Security (Bureau) denied benefits, relying on a copy of Employer's separation notice which indicated that Claimant had violated a company rule by amassing the three unexcused absences. Subsequent to appeal of the Bureau's determination, a

[ 47 Pa. Commw. Page 122]

    hearing was conducted by a referee at the Bureau's office in Milton, Pennsylvania, at which time the Claimant alone appeared and testified.

Noting Employer's absence and the fact that an employer bears the burden of showing that a claimant's discharge was precipitated by willful misconduct, the referee reversed the Bureau and awarded benefits. The referee found that Claimant was never warned that her job was in jeopardy due to her absence from work, and that each time she was absent, Claimant attempted to notify Employer but was unable to do so. The referee then concluded that Employer failed to sustain its burden of proof regarding willful misconduct.

In its petition for appeal from the referee's decision, Employer reviewed Claimant's work history, including her three unexcused absences, and noted that a posted plant rule treated such conduct as an offense punishable by discharge. Employer also stated that it was unfair to conduct a hearing on the matter in Milton rather than at Employer's place of business in Danville, Pennsylvania, and that it would be happy to make its case in Danville.*fn1

The Board affirmed the referee, concluding that Employer had failed to sustain its burden of proof regarding a showing of willful misconduct. The Board noted in particular that while Claimant admitted to the three absences, her uncontradicted testimony "proved that she attempted to contact her employer to report off on those days."

In requesting the Board to reconsider its decision, Employer reiterated the reason for Claimant's discharge and added that on the dates of Claimant's absences, Employer's place of business was staffed ...


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