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WILLIAM H. DICK v. COMMONWEALTH PENNSYLVANIA (07/29/80)

decided: July 29, 1980.

WILLIAM H. DICK, 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 William H. Dick, No. B-171632.

COUNSEL

Paul D. Welch, for petitioner.

John Kupchinsky, Assistant Attorney General, with him James Bradley, Assistant Attorney General, Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.

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

Author: Macphail

[ 53 Pa. Commw. Page 286]

William H. Dick (Claimant) appeals from the decision of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits pursuant to 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), which states that an employee is ineligible for benefits if discharged for wilful misconduct.*fn1

[ 53 Pa. Commw. Page 287]

Claimant was employed by Roadway Express, Inc. (Employer) as a tractor-trailer driver. The terms of his employment were that he would be on call twenty-four hours per day, seven days per week until he had worked forty hours. On any day that Claimant was unable to work, he was to call the Employer and "book off." The Claimant was expected to be at home to receive a phone call on two hours notice to report for work.

On April 15, 1978, Claimant was discharged because the Employer received a busy signal on three occasions when phoning the Claimant to advise him to report for work. The Employer stated, on Bureau (now Office) of Employment Security form UC-45, that Claimant was discharged for "[f]ailure to meet work responsibilities -- absenteeism."

The record shows that the Employer considered the Claimant's work record for the nine months immediately prior to April 15, 1978 in determining what discipline should be imposed for that infraction. This work record revealed the following: 1) Claimant was suspended for three days on September 20, 1977 because he had missed fifteen work opportunities since May 23, 1977; 2) Claimant received a three day suspension on December 27, 1977 because he had missed six out of nineteen work opportunities immediately prior to that date; 3) Claimant received a three day suspension because he was not at home to receive a call to work on February 11, 1978; and 4) Claimant received a five day suspension on February 23, 1978, because he gave the Employer less than one hour's notice of his inability to report for a work assignment he had accepted earlier that same morning.

The referee found that Claimant's unsatisfactory attendance record amounted to wilful misconduct in this case. The Board granted the Claimant a second hearing, with the referee acting as hearing examiner, so

[ 53 Pa. Commw. Page 288]

    that further medical evidence could be presented. The Board found that the Claimant's medical evidence did not establish good cause for his absences and that he had made himself unavailable for work. This ...


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