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ROY L. GREEN v. COMMONWEALTH PENNSYLVANIA (08/12/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: August 12, 1981.

ROY L. GREEN, 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 Roy L. Green, No. B-171072-B.

COUNSEL

Thomas F. Meister, with him Howard D. Miskey, for petitioner.

Richard Wagner, Chief Counsel, with him Joel G. Cavicchia, Associate Counsel, and LeRoy S. Zimmerman, Attorney General, for respondent.

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

Author: Craig

[ 61 Pa. Commw. Page 232]

In this unemployment compensation case, the claimant*fn1 questions a decision of the Unemployment Compensation Board of Review which reversed the referee's award and denied benefits on the ground that the claimant's unemployment was a result of willful misconduct.*fn2

Flinchbaugh Products (employer) discharged claimant in November 1978 for having accumulated more than seven "unauthorized" absences, thus violating the employer's rule that eight such "unauthorized"

[ 61 Pa. Commw. Page 233]

    absences in a twelve-month period would constitute cause for dismissal.

As in W. R. Grace v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 412, 412 A.2d 1128 (1980), the employer's policy here is a no-fault policy, i.e., unauthorized absences include any and all absences, other than a very few exceptions not relevant here.*fn3

An employer bears the burden of proving a claimant's willful misconduct;*fn4 we must reverse because the employer here has not done so.

The record reveals that, on June 20, 1978, claimant received a written warning about his accumulation of absences. Of the seven later instances of absence counted against claimant, the employer's own testimony indicates that five were due to illness; only one absence, July 15, was unexplained, and it occurred more than three months before claimant's discharge. The last incident, which precipitated his discharge, occurred on October 28, 1978, when the claimant left

[ 61 Pa. Commw. Page 234]

    work to go to the hospital because of an emergency involving his son; the claimant did inform his immediate superior of that necessity before he departed.

The board's error stems from its view that the employer's rule was reasonable in this context because "absences which were properly reported off and which were the result of permitted excuses did not count as unauthorized absences;" that view is factually accurate only if the board's word "and" is given a strictly conjunctive effect. The employer plainly testified that any absence which did not fall within the enumerated classes of authorized absence, even though due to illness, was counted against an employee despite proper reporting.*fn5 Reporting affected the unauthorized absence count only in that an illness of several days' duration counted as just one unauthorized absence if the employee had properly reported off each day.

The board thus erred in adopting the employer's position as to claimant's failure to report; the employer's submissions to the unemployment authorities and testimony state plainly that the claimant's

[ 61 Pa. Commw. Page 235]

    absenteeism itself was the alleged misconduct, and not any failure to report.*fn6

With respect to the last precipitating incident, the employer argues that the claimant could have rendered that absence "authorized" by communicating the circumstances to the inspection supervisor and not solely to the "lead man," the claimant's immediate superior. We are of the opinion that the undisputed circumstances surrounding that incident justified the claimant's noncompliance with the letter of the employer's policy; we cannot hold the claimant's action there to be a disqualifying disregard of the employer's interests.

[ 61 Pa. Commw. Page 236]

Although we understand the employer's position that such a no-fault policy is necessary in the context of his business, the law is clear that absence due to illness is not willful misconduct. Tritex Sportswear, Inc. v. Unemployment Compensation Board of Page 236} Review, 12 Pa. Commonwealth Ct. 335, 315 A.2d 322 (1974). In the case before us, the employer candidly admitted that "sicknesses are the ones that were accumulated against [the claimant]."

We must reiterate, as in W. R. Grace, that there is a distinction between cause for dismissal under an employer's policy and disqualifying conduct under the Unemployment Compensation Law; an employer's burden of proving the latter is not necessarily satisfied by proof of the former. Because the board erred in concluding that the employer had demonstrated that the claimant's discharge resulted from disqualifying conduct, we reverse.

Order

And Now, August 12, 1981, the February 14, 1980 order of the Unemployment Compensation Board of Review at No. B-171072-B, is reversed and this case is remanded to the board for computation of benefits.

Disposition

Reversed and remanded.


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