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GEORGE MULQUEEN v. COMMONWEALTH PENNSYLVANIA (07/11/88)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: July 11, 1988.

GEORGE MULQUEEN, 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 George D. Mulqueen, No. B-260433.

COUNSEL

Harry P. O'Neill, for petitioner.

James K. Bradley, Assistant Counsel, with him, Clifford F. Blaze, Deputy Chief Counsel, for respondent.

President Judge Crumlish, Jr., Judge Colins, and Senior Judge Blatt, sitting as a panel of three. Opinion by President Judge Crumlish, Jr.

Author: Crumlish

[ 117 Pa. Commw. Page 518]

An unemployment compensation referee denied George D. Mulqueen benefits due to willful misconduct. Section 402(e) of the Unemployment Compensation Law.*fn1 The Board agreed. Mulqueen appeals; we reverse.*fn2

[ 117 Pa. Commw. Page 519]

Mulqueen started work as a laborer for Wenner Burton on a Wednesday and was told his services were required "five days a week, eight hours."*fn3 At approximately 5:30 p.m. on Friday, he was told to report for work the following day. Despite his employer's directive, he was absent, and was subsequently discharged. The Board found that the request was reasonable and that Mulqueen did not establish good cause for his absence. Cassidy v. Unemployment Compensation Board of Review, 110 Pa. Commonwealth Ct. 367, 532 A.2d 524 (1987).

Mulqueen contends that his absence was justified, because he informed his employer that as a single parent, he could not have found adequate child care on short notice for a Saturday.*fn4

[ 117 Pa. Commw. Page 520]

An employee's good cause may justify countermanding an employer's directive. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). The employee, however, bears the burden of proving good cause. Mitsch v. Unemployment Compensation Page 520} Board of Review, 53 Pa. Commonwealth Ct. 547, 417 A.2d 1347 (1980).

We have previously held that a claimant's absence was justified where an employer issued the claimant an ultimatum to report for work on a Sunday or be fired, despite the claimant having previously notified his employer that he was needed at home to care for his sick wife and son. Thomas v. Unemployment Compensation Board of Review, 14 Pa. Commonwealth Ct. 398, 322 A.2d 423 (1974).

Similarly, in Baillie v. Unemployment Compensation Board of Review, 51 Pa. Commonwealth Ct. 181, 413 A.2d 1199 (1980), the claimant was given an ultimatum after alerting her employer that she could not report for work because she had to care for her seriously ill mother. There, we held that those circumstances justified her absence.

Here, the claimant's uncontroverted testimony established that he too was issued an ultimatum. Having informed his employer that he could not hire a sitter under such limited time constraints, his supervisor told him to report or be fired. As a single parent with two young daughters, having to leave work at 5:30 p.m. on a Friday and secure adequate child care in time to report for work promptly at 7:00 a.m. the next day is an exceptional demand. We conclude that under such short notice, and faced with his employer's ultimatum, Mulqueen's choice to remain at home to care for his daughters, like Thomas and Baillie, justifies his absence.

Accordingly, we reverse the Board's order.

Order

The order of the Unemployment Compensation Board of Review, No. B-260433 dated August 10, 1987, is reversed.

Disposition

Reversed.


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