Appeal from the Order of the Unemployment Compensation Board of Review in the case of In Re: Claim of Juan A. Mendez, No. B-239548.
Stephen R. Krone, for petitioner.
Jonathan Zorach, Associate Counsel, with him, Charles G. Hasson, Acting Deputy Chief Counsel, for respondent.
Judges Craig, Colins and Palladino, sitting as a panel of three. Opinion by Judge Colins. Judge Palladino dissents.
[ 101 Pa. Commw. Page 367]
Juan A. Mendez (petitioner) appeals from a denial of unemployment compensation benefits by the Unemployment Compensation Board of Review (Board) on the grounds of willful misconduct pursuant to Section 402(e) of the Unemployment Compensation Law (Act), Act of December 5, 1936, Second Ex. Sess., (1937) P.L. 2897, as amended, 43 P.S. § 802(e). The Board in this case affirmed the referee's denial of benefits.
Petitioner was employed by Dutch Boys Cleaning Service (employer) from August 17, 1981, until October 18, 1984, when he was specifically discharged because of lateness pursuant to his employer's policy which mandated firing for a third instance of lateness, regardless of the reasons therefor.
The referee found and the Board agreed that petitioner was late on August 30, 1984, because he overslept, that he was late on September 10, 1984, because of car trouble, and that he was late on October 18, 1984, because of a traffic accident on the interstate highway he used to get to work.
The record indicates that employer implemented a so-called "no-fault progressive disciplinary policy." This required a warning after one instance of lateness, a suspension for a second episode, and a discharge for the
[ 101 Pa. Commw. Page 368]
third such instance. These penalties were enforced without regard to the reason for the lateness.
The burden of proving willful misconduct is upon the employer. Lake v. Unemployment Compensation Board of Review, 48 Pa. Commonwealth Ct. 138, 409 A.2d 126 (1979). Where the party with the burden of proof prevails before the Board, our scope of review is limited to determining whether substantial evidence supports the Board's necessary findings of fact or whether an error of law was committed. Dempsey v. Unemployment Compensation Board of Review, 92 Pa. Commonwealth Ct. 524, 499 A.2d 740 (1985). In this case, the burden was on the employer to prove that the petitioner's lateness rose to the level of willful misconduct. Whether or not an employee's conduct constitutes willful misconduct is a question of law subject to our review, and we must make that determination in light of all the circumstances. If the claimant's conduct was reasonable or justifiable under the circumstances, it cannot be said to be willful misconduct. Occasional lateness is insufficient to support the legal conclusion of willful misconduct. Verner v. Unemployment Compensation Board of Review, 80 Pa. Commonwealth Ct. 138, 471 A.2d 139 (1984).
The referee in this case specifically found*fn1 that petitioner's lateness on October 18, 1984, was due to a traffic accident on the interstate highway he used to get to work but that this did not amount to good cause because "he could have started to work early ...