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decided: July 20, 1988.


Appeal from the Order of the Unemployment Compensation Board of Review in the case of Claim of Shaun Brady, No. B-253203.


Lee W. Jackson, Kirschner, Walters & Willig, 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 Senior Judge Blatt.

Author: Blatt

[ 118 Pa. Commw. Page 69]

Shaun Brady (petitioner) petitions for our review of the decision of the Unemployment Compensation Board of Review (Board) affirming the denial of benefits by the

[ 118 Pa. Commw. Page 70]

    referee pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. ยง 802(e) (willful misconduct). We will reverse.

The petitioner was employed by the City of Philadelphia, Department of Revenue (employer), as a revenue examiner from August 16, 1981 to February 21, 1986. On February 4, 1986, he called in to work at 11:33 a.m. to indicate that he was sick and would not be coming in that day. He later reported to work at approximately 12:30 p.m. requesting leave to go to the Municipal Medical Dispensary. Because he had been scheduled to begin work at 8:30 a.m. on that day, his call violated the employer's rule that he must call in no later than one hour after he is scheduled to begin work. As a direct result of this incident, he was suspended and later discharged.

The petitioner applied for unemployment compensation benefits on March 30, 1986, which were granted by the Office of Employment Security. The employer appealed this decision to the referee who reversed and denied benefits. The petitioner then appealed to the Board, which made more explicit findings of fact based on the record from the referee's hearing and then affirmed the referee.

The Board's findings of fact most relevant to this appeal are as follows:

2. Claimant was discharged from his employment because of excessive absenteeism without proper notification to the employer.

3. The claimant had been warned many times about his continuing failure to properly report off from work and his absenteeism. The claimant had been previously suspended four times for these infractions.

[ 118 Pa. Commw. Page 716]

. As a result of his conduct on February 4, 1986, the claimant was suspended and eventually discharged.

7. The claimant's actions were not based upon good cause.

8. The employer not only complied with the progressive disciplinary policy, but permitted the claimant more than enough chances for improvement.

Board's Decision at 1, Reproduced Record (R.R.) at 1a.

The petitioner argues that the Board erred when it concluded that he was guilty of willful misconduct. We agree.*fn1

Willful misconduct under Section 402(e) of the Law has been defined by this Court as a wanton and willful disregard of an employer's interest, a deliberate violation of rules, a disregard of standards of behavior which the employer can rightfully expect from its employee, or negligence which manifests culpability, wrongful intent, evil design, or intentional and substantial disregard for the employer's interests or the employee's duties and obligations. Kentucky Fried Chicken of Altoona, Inc. v. Unemployment Compensation Board of Review, 10 Pa. Commonwealth Ct. 90, 309 A.2d 165 (1973). An employer may notify its employees of its interests and the standards of behavior it expects by promulgating rules. By doing so, it indicates what it would consider to be willful misconduct. Unemployment Compensation Board of Review v. Schmid, 20 Pa. Commonwealth Ct. 286, 341 A.2d 553 (1975).

[ 118 Pa. Commw. Page 72]

The record includes a copy of the Department of Revenue Sick Leave Rules and Regulations as amended on January 15, 1979 and revised July 1, 1984 (Rules). The "Penalties" section of these Rules reads in pertinent part as follows:

An employee who violates any of the provisions of these rules and regulations under Section I [pertaining to requirements for notification of sick leave] or II [pertaining to requirements for medical certification] will not be paid for the days not worked and will be disciplined in accordance with the following procedure:

First Occurrence -- Written Warning

Second Occurrence -- One (1) Day Suspension

Third Occurrence -- Three (3) Day Suspension

Fourth Occurrence -- Ten (10) Days Suspension

Fifth Occurrence -- May be discharged

An occurrence is a violation of any of the provisions under Section I and II of these rules and regulations in a calendar year.

Petitioner's Exhibit 3B, R.R. at 5a (emphasis added).

The employer's Notice of Dismissal, Original Record Item No. 5, indicates that the petitioner received warnings regarding unsatisfactory attendance on November 11, 1981 and January 4, 1982.*fn2 The record further indicates that the petitioner was suspended for 3 days for a violation occurring on June 10, 1982; for 7 days for a violation on January 17, 1983; for 15 days for violations

[ 118 Pa. Commw. Page 73]

    on January 26, 27 and February 10 of 1984. On October 16, 1984, the petitioner received a warning for violations occurring on March 23, July 3, October 4 and October 11 of 1984.*fn3 He was suspended for 29 days on October 30, 1985 for violations on September 16 and October 16 of 1985. This notice of suspension, dated October 30, 1985, indicated that on the petitioner's next occasion of AWOL,*fn4 he would be dismissed. The petitioner was later suspended for 30 days beginning February 22, 1986 due to the incident of February 4, 1986, the same incident for which he was subsequently dismissed. The explanation attached to his last notice of suspension ended:

Because of the occasion of AWOL which occurred on February 4, 1986 and in view of your previous disciplinary record for this type of offense, you are being suspended for a period of thirty (30) days.

Employer's Exhibit la.

The record is clearly replete with examples of the petitioner's poor attendance and of subsequent warnings

[ 118 Pa. Commw. Page 74]

    and suspensions over the period of six years. It is just as clear, however, that the employer did not follow its own disciplinary policy in dealing with this problem. Regardless of whether one interprets the phrase "a calendar year" as twelve months or the year beginning January 1, the petitioner did not have five occurrences of his problem with absenteeism in the calendar year before he was dismissed. The Board's finding that the employer complied with its progressive disciplinary policy, therefore, is not supported by substantial evidence.

The Board argues in its brief to this Court that, although the employer did not follow the disciplinary schedule found in its Rules, it did have authority to discharge the petitioner pursuant to the clause in Philadelphia Civil Service Regulation 22.01, which indicates that an appointing authority may suspend or discharge an employee due to unauthorized absence. The Board further argues that the employer also had warned the petitioner before his dismissal that his next violation of the Rules would result in dismissal. As a result of this notice, it argues, the petitioner did have knowledge of the behavior expected of him and the resulting consequences if he failed to follow that standard.

On the contrary, we believe that it is reasonable for the petitioner to rely on the standard set forth in the employer's own Rules. These Rules are indicative of the standards of behavior the employer expects of its employees.*fn5 As the record shows, the petitioner committed

[ 118 Pa. Commw. Page 75]

    seven Rule violations in 1984. As a result, a hearing was held and it was decided that he would not be terminated at that time. Subsequently, he committed only two violations in 1985 and only one in 1986. The clear wording of the Rules does appear to be unusually generous. If, however, the employer does not intend to be so generous, it can and should rewrite its policy. As of the date when the petitioner was dismissed, he had not committed sufficient violations in that year to warrant dismissal for willful misconduct.

We will, accordingly, reverse the Board.


And Now, this 20th day of July, 1988, the decision and order of the Unemployment Compensation Board of Review in the above-captioned matter is hereby reversed.



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