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JOHN H. GWIN v. COMMONWEALTH PENNSYLVANIA (03/23/81)

decided: March 23, 1981.

JOHN H. GWIN, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, UNEMPLOYMENT COMPENSATION BOARD OF REVIEW, RESPONDENT



Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of John H. Gwin, No. B-166341-B.

COUNSEL

David M. Axinn, for petitioner.

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

Judges Blatt, Craig and MacPhail, sitting as a panel of three. Opinion by Judge MacPhail. This decision was reached prior to the expiration of the term of office of Judge Wilkinson. Dissenting Opinion by Judge Blatt.

Author: Macphail

[ 58 Pa. Commw. Page 70]

John H. Gwin (Claimant) appeals to this Court from an order of the Unemployment Compensation Board of Review (Board) which affirmed the decision of a referee denying unemployment compensation benefits to Claimant. The Board found that Claimant

[ 58 Pa. Commw. Page 71]

    had been discharged for willful misconduct and, therefore, was ineligible to receive benefits under the provisions 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). We reverse.

Claimant had been employed by GKO Enterprises (Employer) as a machine operator for slightly less than two years when, on May 2, 1978, he was discharged for his refusal to comply with a work assignment. Claimant had received bruised ribs as the result of an accident which occurred on or about April 15, 1978 while he was operating a machine known as a vertical boring mill. Claimant missed only a few hours of work due to his injuries, which were not severe. Claimant developed a fear of the machine as a result of the accident. He was consequently assigned to operate a different machine until May 2, 1978 at which time he was reassigned to the vertical boring mill. Claimant refused to comply with the work order, citing his fear of the machine, and was discharged.

Two issues have been presented for our consideration in this appeal: 1) whether the Board improperly placed the burden of demonstrating good cause on the Claimant; and 2) whether the Board erred in failing to find that Claimant had good cause for refusing to operate the vertical boring mill.

The burden of proving willful misconduct is on the Employer. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979). It is well settled that an employee's refusal to comply with a reasonable work assignment can constitute willful misconduct. Mitsch v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 547, 417 A.2d 1347 (1980) and Hughes v. Unemployment Compensation Board of Review, 40 Pa. Commonwealth Ct. 422, 397 A.2d 494

[ 58 Pa. Commw. Page 72]

(1979). The employee, however, may attempt to justify his refusal to perform the assigned work by demonstrating good cause for his actions. It is the employee's burden to establish good cause. Holomshek, supra. The Board, therefore, was ...


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