ELLIS v. UNEMPL. COMP. BD. of REV., 75 Pa. Commw. 74 (1983)

460 A.2d 1240

David L. Ellis, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.
June 13, 1983.

Unemployment compensation — Absences — Wilful misconduct.

1. Justified absences properly reported do not constitute wilful misconduct, but habitual absences particularly after warnings and coupled with unexcused tardiness can constitute wilful misconduct precluding receipt of unemployment compensation benefits by an employe discharged therefor. [76]

Page 75

Submitted on briefs May 12, 1983, to Judges WILLIAMS, JR., CRAIG and DOYLE, sitting as a panel of three.

Appeal, No. 773 C.D. 1982, from the Order of the Unemployment Compensation Board of Review in case of In Re: Appeal of David L. Ellis, No. B-203687.

Application to the Office of Employment Security for unemployment compensation benefits. Benefits denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Hubert X. Gilroy, Broujos and Gilroy, for petitioner.

Charles G. Hasson, Acting Deputy Chief Counsel, with hi Richard L. Cole, Jr., Chief Counsel, for respondent.

OPINION BY JUDGE CRAIG, June 13, 1983:

David L. Ellis appeals an order of the Unemployment Compensation Board of Review, affirming a referee’s decision denying him benefits under section 402(e) of the Unemployment Compensation Law,[1] on the ground his dismissal from employment resulted from willful misconduct.[2]

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The referee’s findings, which essentially are not in dispute, indicate that the employer discharged the claimant on August 25, 1981, following the claimant’s absence the preceding workday.[3] In the year preceding the dismissal, the claimant had been absent six days and tardy six other days, despite earlier warnings by the employer about his attendance record.

The employer acknowledges that the claimant had excuses for his recent absences, but argues that the absences, which noticeably tended to extend the claimant’s weekends off, coupled with the claimant’s unexcused tardiness, past attendance record, and earlier warnings, constitute willful misconduct. In response, the claimant alleges that excused absences do not constitute willful misconduct, citing Adept Corp. v. Unemployment Compensation Board of Review, 62 Pa. Commw. 566, 569, 437 A.2d 109, 110 (1981) (“Even excessive absenteeism, where justified or where properly reported according to company policy, although a legitimate basis for discharge, does not constitute willful misconduct or disqualify a claimant from receiving unemployment compensation benefits.”) and Penn Photo Mounts, Inc. v. Unemployment Compensation Board of Review, 53 Pa. Commw. 407, 417 A.2d 1311 (1980).

Here, however, these absences must be viewed in the context of instances of unexcused tardiness and the employer’s past warnings. Habitual neglect in reporting to work, particularly after warnings, is sufficient to sustain a willful misconduct disqualification. See Sanesi v. Unemployment Compensation Board of Review, 56 Pa. Commw. 516, 425 A.2d 65 (1981).

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Accordingly, we must affirm the order of the board.

ORDER
NOW, June 13, 1983, the order of the Unemployment Compensation Board of Review, No. B-203687, dated March 15, 1982, is affirmed.

[1] Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897 as amended, 43 P. S. § 802(e).

[2] The employer has the burden of proving willful misconduct Gane v. Unemployment Compensation Board of Review, 41 Pa. Commw. 292, 398 A.2d 1110 (1979). Because the employer here has carried that burden before the referee and the board, we review the evidence in the light most favorable to it, affording it the benefit of all the inferences which can fairly be drawn from the testimony. Roman v. Unemployment Compensation Board of Review, 51 Pa. Commw. 44, 413 A.2d 775 (1980).

[3] In its Finding of Fact No. 2, the referee indicates that the claimant’s absence on April 21, 1981 precipitated his dismissal. However, the parties acknowledged that the correct date of the absence should read August 24, 1981.