Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Appeal of David L. Ellis, No. B-203687.
Hubert X. Gilroy, Broujos and Gilroy, for petitioner.
Charles G. Hasson, Acting Deputy Chief Counsel, with him Richard L. Cole, Jr., Chief Counsel, for respondent.
Judges Williams, Jr., Craig and Doyle, sitting as a panel of three. Opinion by Judge Craig.
David L. Ellis appeals an order of the Unemployment Compensation Board of Review, affirming a referee's decision denying him benefits under section 402(e) of the Unemployment Compensation Law,*fn1 on the ground his dismissal from employment resulted from willful misconduct.*fn2
The referee's findings, which essentially are not in dispute, indicate that the employer discharged the claimant on August 25, 1981, following the claimant's absence the preceding workday.*fn3 In the year preceding the dismissal, the claimant had been absent six days and tardy six other days, despite earlier warnings by the employer about his attendance record.
The employer acknowledges that the claimant had excuses for his recent absences, but argues that the absences, which noticeably tended to extend the claimant's weekends off, coupled with the claimant's unexcused tardiness, past attendance record, and earlier warnings, constitute willful misconduct. In response, the claimant alleges that excused absences do not constitute willful misconduct, citing, Adept Corp. v. Unemployment Compensation Board of Review, 62 Pa. Commonwealth Ct. 566, 569, 437 A.2d 109, 110 (1981) ("Even excessive absenteeism, where justified or where properly reported according to company policy, although a legitimate basis for discharge, does not constitute willful misconduct or disqualify a claimant from receiving unemployment compensation benefits.") and Penn Photo Mounts, Inc. v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 407, 417 A.2d 1311 (1980).
Here, however, these absences must be viewed in the context of instances of unexcused tardiness and the employer's past warnings. Habitual neglect in reporting to work, particularly after warnings, is sufficient to sustain a willful misconduct disqualification. See Sanesi v. Unemployment Compensation Board of Review, 56 Pa. Commonwealth Ct. 516, 425 A.2d 65 (1981).
Accordingly, we must affirm the order of ...