The opinion of the court was delivered by: Judge McGINLEY
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE DAN PELLEGRINI, Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge.
Lanara D. Oliver (Claimant) petitions for review from the order of the Unemployment Compensation Board of Review (Board) which reversed the referee's grant of benefits under Section 402(e) of the Unemployment Compensation Law (Law).*fn1
Claimant worked as a preschool teacher for Bostley's Preschool (Employer) from February 26, 2007, through February 26, 2009. On February 26, 2009, Claimant took her group of six children from the playroom to an outdoor play area. Employer had a policy that a teacher must supervise all of the children in her charge at all times. Claimant's supervisor noticed that one child was still in the playroom. She retrieved the child and delivered him to Claimant. Claimant's failure to supervise this child resulted in her termination.
Claimant applied for unemployment compensation benefits. Her claim was denied by the Unemployment Compensation Service Center. Claimant appealed to the referee.
On May 13, 2009, the referee held a hearing. Vanessa Holmes (Holmes), executive director of Employer, testified regarding Claimant's termination:
DPW [Department of Public Welfare] regulations and Bostleys [sic] Pre-School has a 100 percent supervision policy. . . . DPW regulations . . . 'Children on the premises must be supervised at all times by the staff. The staff person shall be assigned and responsible for supervision of children.'. . . 'The staff person should know the names and whereabouts of the children in his or her group on the facility excursions. . . .
Notes of Testimony, May 13, 2009, (N.T.) at 5.
Holmes also testified regarding Employer's one hundred percent supervision policy:
[T]his is page three of our staff manual and in here it states that 'No child shall ever be left unattended or unsupervised at any time for any reason. Our standard for supervision that is 100 percent of the children shall be supervised 100 percent of the time with no exception for any reason.' . . . .
And this policy was signed and dated by Ms. LaNara [Claimant] when she started with employment with Bostley's. It also states in that policy that upon finding that someone did leave a child unattended that they would be terminated, and that's on the page that Ms. LaNara [Claimant] . . . signed.
Melissa Schon (Schon), director of Employer and Claimant's supervisor, testified regarding the events surrounding her discovery that Claimant could not account for one of the children assigned to her:
I was outside on our playground, our smaller playground, and the other teacher and I both noticed that there was a child in the playroom. And I went to see why that child was in there. The lights were off and the child was by themself [sic]. And I went to proceed to ask Ms. LaNara [Claimant] how many children she had, because I knew that the child belonged to her. And she stated that she had six, and I said, 'No . . . You have five, because here is your sixth one.' So that is what happened with that.
Schon also testified that Claimant was given a warning on February 13, 2009, for violating the one hundred percent supervision policy. N.T. at 11.
Claimant acknowledged that she was aware of Employer's policy that no child was to be left unattended or unsupervised for any moment of time. N.T. at 12. She further acknowledged that she received a verbal warning for violation of this policy on February 13, 2009. N.T. at 12. Claimant explained the events of February 26, 2009, at the hearing before the referee:
[W]hen we were going outside the playroom . . . my shoe strings were all loose. I stumbled over my feet. . . . And I sort of . . . fell into the slide so I wouldn't fall on the floor or on the ground, and . . . the door was still open because I fell. So when I turned around the [sic] close the door . . . I didn't . . . actually, see him in there. Honestly, I did not, because if I did, I would have grabbed him out of there. I closed the door. I did not know he was in there. I picked up my roll book off the floor because I had dropped the roll book on the floor as well, and I started playing with the children. That's when I noticed I didn't see Peter, so that's when I started looking around for him, and that's when Melissa came out and asked me how many children did I have. And proceeded to tell her I had six, and she said, 'No, you have five.' I said, 'Five?' And that's when she pulled him from around her. And then I said, 'Oh, my god, I didn't know he was in there,' and I was telling her I was sorry, and she gave me this look, and she says, 'Well, I'm going to have to document this.' And she closed the door and went in.
Claimant estimated that the child was missing for no more than four minutes. N.T. at 13. She believed that she had "all six of them [the children] when I went out." N.T. at 14. However, she "didn't realize that he had went [sic] back in because I went to close the door, I didn't see him." N.T. at 14. Claimant admitted that she violated Employer's rule but that it was an "honest mistake" N.T. at 14.
In her closing statement, Holmes summarized her position:
I would just say that this is not the first time that we have let somebody go for this reason. We have a policy; we enforce it. If children are not supervised, any staff member at any time should be able to walk up to them and ask them how many children they have in their care, should be able to tell us how many, and know those children by name. Do I feel this was intentional? No. But accidents happen because things are not intentional, and that's why we have this policy. We have to enforce it.
The referee reversed the determination by the Unemployment Compensation Service Center and granted benefits. The referee made the following findings of fact:
1. The claimant was last employed at Bostleys Pre-School as a full time preschool teacher at the rate of $7.65 per hour from February 26, 2007 through her last day worked of February 26, 2009.
2. The claimant was discharged for leaving a two year old child in a play room by himself while outside on the playground with the other children.
3. The employer has a policy which states in part that no child shall ever be left unattended or unsupervised at any time for any reason.
4. Our [Employer's] standard for supervision is that 100% of the children shall be supervised 100% of the time with no exceptions for any reason.
5. The employer's policy also provides that the following action will be taken for any lapse in supervision regardless of the duration: (1) the employee will be placed on an immediate two week unpaid suspension while the case is being reviewed;
(2) subject to the findings of the review, the following may occur: (a) the employee's employment may be terminated, or
(b) the employee may be reinstated in a probationary status for a period to be determined.
6. The claimant received a verbal warning from her direct supervisor on February 13, 2009 in regards to the 100% supervision policy.
7. On February 26, 2009, when taking the six two-year old children she was watching from the playroom to the playground outside, the claimant counted that she had six children on her way out to the playground.
8. The claimant stumbled over her shoe string and fell into a slide.
9. Regaining her balance, the claimant turned around to close the door and was not aware that one of the six children went back inside the playroom.
10. The claimant began playing with the children she was supervising on the playground and a few minutes later noticed that one of the six children was missing, so began to look for him on the playground equipment.
11. The claimant's supervisor then came over to the claimant and asked her how many children she had to which the claimant responded she had six.
12. The claimant's supervisor responded, 'no you have five, here is number six.'
13. Claimant's supervisor contacted the executive director and then the executive director contacted the owner of Bostley's Pre-School and the decision was made to terminate the claimant's employment that same day.
14. On February 26, 2009, the claimant violated the employer's 100% supervision policy.
Referee's Decision, May 15, 2009, (Decision), Findings of Fact Nos. 1-15 at 1-2.
The referee determined that Claimant's conduct did not rise to the level of willful misconduct because she did not deliberately violate ...