Appeal from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Jose R. Maldonado, No. B-231583.
Michael Goldberg, for petitioner.
Richard F. Faux, Assistant Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges Craig and Palladino, and Senior Judge Kalish, sitting as a panel of three. Opinion by Judge Craig.
[ 94 Pa. Commw. Page 150]
Claimant Jose Maldonado appeals from a decision of the Pennsylvania Unemployment Compensation Board of Review affirming the referee's decision that claimant's excessive absenteeism and his one-time failure to report off from work constituted willful misconduct under section 402(e) of the Pennsylvania Unemployment Law.*fn1
[ 94 Pa. Commw. Page 151]
The claimant worked in the maintenance department of the Victor Weaver Company (employer) for nearly six years until his discharge on February 10, 1984. The claimant's employment record indicated that he was absent from work on January 24, January 31, February 8 and February 10, 1984. The claimant left work early on January 20 and February 7, 1984. On February 6, 1984, in addition to being absent, he also failed to contact the employer to report off.
According to the referee's findings, adopted by the board, the claimant's wife had been suffering from depression for nearly two years when the employer discharged him. She had been hospitalized for her mental illness. The employer was aware of her illness and facilitated treatment by enrolling her in the employee assistance plan. The claimant left work early on two occasions after his wife telephoned him at work and pleaded with him to return home. Except for the one day when claimant failed to report his absence, he told the employer when reporting off that he could not work because he had to stay with his wife.
The issue is whether the board committed an error of law*fn2 in determining that the claimant's repeated absences from work constituted willful misconduct, disqualifying him from eligibility for benefits. We believe that the board erred as a matter of law, on the basis of the present findings.
One finding*fn3 held that the employer viewed the claimant's absenteeism and early departures as unexcused. Although that might have been the employer's
[ 94 Pa. Commw. Page 152]
viewpoint, the board had the duty to determine whether the absences were unexcused or unjustified as a matter of law, and not whether the employer considered those absences unexcused. This court has held repeatedly that there is a sharp legal distinction between the cause of the discharge from the employer's standpoint and willful misconduct which bars unemployment compensation benefits. W. ...