Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Kathleen Johnston, No. B-169427.
Robert G. Bauer, of counsel, Abraham, Pressman, Tietz & Seidman, for petitioner.
John T. Kupchinsky, Assistant Attorney General, with him 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.
[ 53 Pa. Commw. Page 408]
Penn Photomounts, Inc. (Employer) appeals from a decision of the Unemployment Compensation Board of Review (Board) awarding unemployment compensation benefits to Kathleen Johnston (Claimant). Claimant's last day of work for Employer was September 21, 1977 and her final rate of pay was $3.02 per hour. She was discharged by letter on October 3, 1977. The reason given in the letter for the discharge was "repeated unexcused absences." At the first hearing in this matter,
[ 53 Pa. Commw. Page 409]
Employer's supervisor explained that Claimant was discharged for "excessive unexcused absences, failure to notify us that she wasn't coming in."
Following her discharge, Claimant applied for unemployment compensation benefits. The Bureau (now Office) of Employment Security (Bureau) approved Claimant's application. Employer appealed. Following a hearing at which Claimant, unrepresented by counsel, and two representatives of Employer, represented by counsel, testified, the referee reversed the decision of the Bureau and denied benefits to Claimant. The basis of the denial was the referee's conclusion that Claimant's failure to give proper notice of her absences to Employer constituted willful misconduct thereby rendering her ineligible for unemployment compensation benefits pursuant to 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. § 802(e). Claimant appealed the referee's decision to the Board. The Board remanded the case for a further hearing at which Claimant was represented by counsel. Following the second hearing, the Board entered an order reversing the decision of the referee and awarding benefits to Claimant. The sole issue before us is whether the Board erred in determining that Claimant's method of notifying Employer of her absences, although not in compliance with Employer's formal, written policy, did not constitute willful misconduct. For the reasons which follow, we affirm the order of the Board.
We have held repeatedly that the failure of an employee to report the reason for his or her absences from work in a proper manner pursuant to company policy constitutes a deliberate disregard of the standards an employer can rightfully expect of an employee, i.e., willful misconduct. Azar v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 23, 26,
[ 53 Pa. Commw. Page 410382]
A.2d 995, 996 (1978); Ferko v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 597, 601, 309 A.2d 72, 74 (1973); Horan v. Unemployment Compensation Board of Review, 7 Pa. Commonwealth Ct. 194, 197, 300 A.2d 308, 309 (1973). Excessive absenteeism, where justified or where properly reported according to company policy, while still a legitimate basis for discharge, does not constitute willful misconduct and does not disqualify a claimant from receiving unemployment compensation benefits. Welded Tube Co. of America v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 231, 234, 401 A.2d 1383, 1385 (1979). The burden of proving willful misconduct is on the employer, Gonzalez v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 70, 73, 395 A.2d 292, 293 (1978), and the question of whether the behavior for which a claimant is discharged constitutes willful misconduct is a question of law and subject to review by this Court, Mancini v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 266, 271, 412 A.2d 702, 704 (1980). Where, as here, the party with the burden of proof fails to prevail before the Board, our scope of review is limited to determining whether the findings of fact are consistent with each other and with the conclusions of law and whether they can be sustained without a capricious disregard of competent evidence. Aluminum Co. of America v. Theis, 11 Pa. ...