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VIVIEN TRAVOR v. COMMONWEALTH PENNSYLVANIA (08/27/82)

decided: August 27, 1982.

VIVIEN TRAVOR, 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 Vivien I. Travor, No. B-197780.

COUNSEL

David L. Hill, with him Richard W. Shaffer, for petitioner.

William J. Kennedy, Associate Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Rogers

[ 68 Pa. Commw. Page 472]

Vivien Travor here appeals from an order of the Unemployment Compensation Board of Review denying her claim for benefits on the ground that her dismissal from an employment position with the Boys Club of Metropolitan Philadelphia was the result of her willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law, 43 P.S. ยง 802(e).

It is undisputed and the Board found that prior to her dismissal and during her probationary period of employment, the claimant was absent on five days in February, 1981, and on two days in March, 1981; that each of these absences was properly reported by the claimant by means of a telephone call to the employer; that each of these absences was caused by illness for which the claimant was under a doctor's

[ 68 Pa. Commw. Page 473]

    care; that the aggregate of these absences exceeded the amount of the claimant's accrued sick leave; and that the claimant was twice warned that in her supervisor's view she was too often unable to perform her duties due to illness and that additional absences would result in termination.

Of course, the propriety of the employer's decision to discharge the claimant is not here at issue. Considerations relevant to an inquiry into the propriety of the discharge are not controlling on the issue of whether the discharged employee is eligibile for unemployment compensation benefits and circumstances which constitute sufficient cause for a dismissal may nevertheless fail to constitute disqualifying willful misconduct. Specifically, "[a]bsenteeism may justify the discharge of an employee but standing alone it is not willful misconduct rendering the employee ineligibile for unemployment compensation. Only if absences are unjustified, or not properly reported according to employer's rules or directives, are they disqualifying. Welded Tube Company of America v. Unemployment Compensation Board of Review, 43 Pa. Commonwealth Ct. 231, 401 A.2d 1383 (1979)." Pauline v. Unemployment Compensation Board of Review, 55 Pa. Commonwealth Ct. 267, 423 A.2d 55 (1980). Here the Board found that the claimant's absences were justified as due to illness and that they were properly reported.

Nevertheless, the Board affirmed a referee's denial of benefits on the basis of the following disputed factual finding:

13. On March 27, 1981, the claimant was discharged for excessive absences without proper certification.

The testimonial evidence indicated by the Board as lending support to the portion ...


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