Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Douglas G. Ziegler, No. B-187216-B.
Michael Goldberg, for petitioner.
Richard Lenger, Law Student Intern, with him Michael Klein, and Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Rogers, Williams, Jr. and Craig, sitting as a panel of three. Opinion by Judge Rogers.
The claimant*fn1 in this unemployment compensation case has appealed from a decision by the Unemployment Compensation Board denying him benefits on the ground that his unemployment was the result of willful misconduct in being absent from work on April 25, 28 and 29, 1980 without notifying his employer.
The claimant was employed as a tractor trailer driver trainee for about four months before his employer discharged him. In response to the Office of
Employment Security's questions concerning the reason for the claimant's discharge, the employer reported that the claimant's work and attitude were unsatisfactory and that he came to work late most of the time.
At the referee's hearing, the claimant was represented by counsel and his employer was not. The employer testified that the claimant ran over curbs, forced other vehicles into gutters and on one occasion when the employer was driving, fell asleep. On the subject of lateness, the employer testified that the claimant was not on time for work more than six times during the four months of employment.
The claimant was discharged on April 30, 1980, when he returned after being absent April 25, 28 and 29 because of an injury at work. In the course of the employer's testimony as to this event, the employer in response to a question of the referee said that the claimant had not reported his absence on the three days previous to his discharge; that such reports, if made, would be received and logged by his secretary; and that the secretary had not reported any such calls to him. Neither the secretary, nor her log was at the hearing. The claimant testified that he did the best he could at work, that he reported absences on April 25, 28 and 29 but admitted that he had been tardy on a number of occasions.
The referee decided that the claimant was disqualified not for either of the reasons given by the employer to the Office of Employment Security -- incompetency and persistent tardiness -- but for the claimant's failure to report his absences on April 25, 28 and 29.
The claimant contends that he cannot be disqualified for not reporting his absences on the three days in question because the only evidence that he failed to ...