No. 131 E.D. Appeal Docket 1984; Appeal from the Order of the Commonwealth Court in No. 1972 C.D. 1982, March 27, 1984, vacating and remanding the decision and Order of the Unemployment Compensation Board of Review, Decision No. B-207996. 81 Pa. Commonwealth Ct. 189,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a concurring opinion in which Papadakos, J., joined. Hutchinson, J., filed a dissenting opinion.
We review an Opinion and Order of the Commonwealth Court, 81 Pa. Commw. 189, 473 A.2d 237, holding that in an unemployment compensation benefit case where the employer has the burden of proof, the referee must explain to an uncounseled claimant that he is not required to testify and that if he does testify his testimony may be used to establish ineligibility for benefits.
The Appellee in this case, Raybelle Vann, filed a claim for unemployment compensation benefits after she was dismissed from her job as a short order cook at Casey's Bar and Restaurant in Philadelphia. The employer's statement filed on Form UC-45A in response to this application indicated that the Appellee was discharged for "unsatisfactory performance" and "willful misconduct" with the explanation that she "repeatedly refused to do the required work of a short order cook." An attached handwritten note further detailed that
[t]he day she was fired, I asked her to do some small job in the kitchen and she refused. I then waited about 15 minutes and asked her again and she told me that she did not have to do what I asked her to do. She only had to do what she thought was her job.
(Emphasis in original). These statements were signed by J.S. Goodman as president and owner of Casey's.
In the Summary of Interview Form UC-990(7), the Appellee stated that she had been separated from her employment by Joe Goodman because "I didn't do his work. I had my own work to do in 1 hour." She further explained
I had one hour to set up for lunch and break down breakfast, then start lunch order. Joe Goodman told me to set him up and I said I didn't have time because I was already behine [sic]. Joe Goodman said I was suppose [sic] to do what every [sic] he said for me to do. He told me to take off my apron and leave.
I was hired to be short order cook not preperation [sic] cook.
The claims examiner determined that the Appellee had refused to perform a work related task requested by her employer and disapproved her claim for benefits in accordance with Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex.Sess., P.L. (1937) 2897, art. IV, § 402, as amended, Act of May 29, 1945, P.L. 1145, § 9, 43 P.S. § 802(e). That section provides that
[a]n employee shall be ineligible for compensation for any week . . . [i]n which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work, irrespective of whether or not such work is "employment" as defined in this act.
The Bureau's determination of misconduct was appealed to a referee, who conducted a hearing on April 6, 1982. The Appellee was the only party present at this hearing. After advising the Appellee of her rights to be represented by an attorney, to cross-examine witnesses, and to present witnesses of her own, the referee entered the documents in the Appellee's file into the record. He then stated that his was a willful misconduct case and that the "burglar-proof [sic] will fall upon your employer to show your 'willful misconduct'." The referee proceeded to question the Appellee and told her she would "have a chance to explain the circumstances which brought about your unemployment." In response to the referee's questioning the Appellee testified as to the events leading up to her dismissal. Her testimony was substantially similar to the explanation on the Summary of Interview Form. The primary difference was the Appellee's explanation by way of her testimony that she was hired by Edward Goodman, Joseph Goodman's father, and that she understood that Edward, not Joseph, was her immediate supervisor and boss. She further explained that she and Joseph were essentially co-workers, the Appellee carrying out the duties of a short order cook in the kitchen, running "the grill, the steam table, the deep frier, [and] the dressing table," while Joseph Goodman took care of the cold sandwiches in the front of the restaurant.
The referee denied benefits, reasoning that the Appellee's refusal to perform a reasonable request of her boss constituted willful misconduct. On appeal, the Board of Review affirmed the referee's decision. The Board noted its finding that the employer's request was work related and reasonable and that the ...