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KATHY HUBBARD v. COMMONWEALTH PENNSYLVANIA (02/24/83)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: February 24, 1983.

KATHY HUBBARD, 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 Kathy Hubbard, No. B-193981.

COUNSEL

Andrew F. Erba, for petitioner.

Charles G. Hasson, Assistant Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.

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

Author: Macphail

[ 72 Pa. Commw. Page 286]

Kathy Hubbard (Claimant) appeals here from a decision of the Unemployment Compensation Board of Review (Board) denying her benefits on the basis of willful misconduct.

The Office of Employment Security (Office) in its Notice of Determination denied benefits to the Claimant on the basis that she voluntarily terminated her employment without cause of necessitous and compelling nature.*fn1 Claimant appealed the Office's determination and the referee scheduled a hearing on Claimant's Petition for Appeal. Neither of the parties were present at the hearing; however, based solely on the records before her, the referee affirmed but modified the Office's determination denying benefits on the

[ 72 Pa. Commw. Page 287]

    basis that Claimant's conduct constituted willful misconduct,*fn2 as opposed to denying benefits, as the Office did, on the ground of voluntary termination without cause of necessitous and compelling nature. Claimant filed a further appeal from the referee's determination whereupon the Board ordered a remand hearing. At that hearing, both sides presented testimony. The Board adopted the findings and affirmed the referee's original decision made prior to the remand hearing holding Claimant ineligible for unemployment compensation benefits on the basis of willful misconduct.

The following findings were those adopted by the Board:*fn3

1. Claimant was last employed by Provident Bank on June 23, 1980 as a proof operator earning $3.17 per week.*fn4

2. During the period the Claimant worked in the above employment, she was excessively absent and tardy for which she had received warnings and [sic] placed on probation.

[ 72 Pa. Commw. Page 2883]

. When Claimant's attendance record failed to reflect any improvement, she was given the option to resign or be fired.

4. Claimant voluntarily terminated her employment in lieu of discharge.

Our review of the record at the referee's hearing indicates that Claimant on May 5, 1980 was placed on two month's probation for lateness and attendance. The notification of probation from the employer*fn5 to Claimant included a statement that "future excessive lateness and/or absenteeism within one year will be grounds for immediate termination with no additional probationary period." Between May 6 and June 23, Claimant was absent on three occasions and late twice.*fn6 The employer's representative testified categorically that the reason for termination was absenteeism.

Under its rules, the only excuse for absence the employer would consider justifiable during this probationary period was hospitalization. Employer admitted that one of the three absences following May 6 was hospitalization for six days. That absence, accordingly, was excused. Claimant testified that the other two absences were due to illness requiring her to remain at home and that this fact was reported to the employer. The employer rejected this excuse because there was no hospitalization.

It is well settled that an employer may dismiss an employee for violation of its rules and regulations but

[ 72 Pa. Commw. Page 289]

    it is for the Board in the first instance and this Court on appeal to determine whether the violation is disqualifying willful misconduct barring Claimant's right to unemployment compensation benefits. In the instant case, it is obvious that Claimant has raised the issue of just cause to excuse her absences. Absence due to illness is not willful misconduct if properly reported and reasonable. Green v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 231, 433 A.2d 587 (1981). When the issue of good cause has been raised, it must be addressed by the Board before a finding of willful misconduct can be made. Gwin v. Unemployment Compensation Board of Review, 58 Pa. Commonwealth Ct. 69, 427 A.2d 295 (1981). Where a separate finding relating to the issue of good cause is not present this Court will remand for further proceedings. Porter v. Unemployment Compensation Board of Review, 68 Pa. Commonwealth Ct. 639, 450 A.2d 243 (1982).

As we have noted, the referee's findings and decision as adopted by the Board reflect none of the testimony at the remand hearing. The Board's finding from records only that Claimant's excessive absences and tardiness constituted willful misconduct without a concurrent finding with respect to Claimant's justification for such excessive absenteeism and tardiness is inadequate for us to perform our appellate review. Since the Board has failed in its fact finding duties, we will remand for further proceedings. Rochester Machine Corp. v. Unemployment Compensation Board of Review, 60 Pa. Commonwealth Ct. 327, 431 A.2d 1109 (1981).

Order

It is ordered that the order of the Unemployment Compensation Board of Review numbered B-193981 and dated April 2, 1981, is vacated and the case is remanded

[ 72 Pa. Commw. Page 290]

    to the Board for findings and a decision consistent with the foregoing opinion. Jurisdiction relinquished.

Disposition

Vacated and remanded.


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