GRACE v. UNEMPL. COMP. BD. of REVIEW, 50 Pa. Commw. 412 (1980)

412 A.2d 1128

W. R. Grace, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.Argued March 14, 1980
April 10, 1980.

Unemployment compensation — Willful misconduct — Burden of proof — Illness — Discharge policy.

1. In an unemployment compensation case, the employer has the burden of proving willful misconduct. [414]

2. Where illness causes an early departure and absence from work which precipitate a discharge from employment, an unemployment compensation claimant is not guilty of willful misconduct, even though the early departure and absence violate an employer’s discharge policy, and is entitled to benefits. [414]

Argued March 14, 1980, before Judges MENCER, CRAIG and WILLIAMS, JR., sitting as a panel of three.

Page 413

Appeal, No. 787 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Frank R. Dennis, Jr., No. B-170051.

Application to Bureau of Employment Security for unemployment compensation benefits. Benefits awarded. Employer appealed to the Unemployment Compensation Board of Review. Appeal denied. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Richard L. Orwig, with him William W. Runyeon, of Edelman, Saylor, Malsnee and Orwig, for petitioner.

Charles G. Hasson, Assistant Attorney General, with hi Richard Wagner, Chief Counsel and Edward G. Biester, Jr.,
Attorney General, for respondent.

OPINION BY JUDGE CRAIG, April 10, 1980:

Petitioner W. R. Grace (employer) appeals from the decision of the Unemployment Compensation Board of Review which affirmed the referee’s award of unemployment benefits to Frank R. Dennis, Jr. (claimant).

Under employer’s company policy, employees accumulate one (1) point for each day of absence, and one-half (1/2) point for each occasion of late arrival or early departure; the policy does not differentiate absence due to illness from absence for any other cause. Employees who accumulate thirteen points within any calendar year are subject to discharge.

Employer discharged claimant on October 19, 1978, for alleged breach of that policy. Employer contends that claimant’s record of absence and tardiness establishes

Page 414

willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).[1]

The referee found that claimant had been suspended in August of 1978 because of his accumulation of points up to that date; he also found that claimant was absent October 9, 1978, left early on October 17, and was absent on October 18, which allegedly brought claimant’s total points beyond the forbidden level.[2] However, the referee further found that claimant’s early departure on October 17 and his absence on October 18 were the result of illness, certified by a physician.

The referee therefore concluded that the employer had failed to satisfy the burden of demonstrating willful misconduct. We agree. Because illness caused the early departure and absence which precipitated the discharge, even if claimant violated the “no-fault” discharge policy, there was no willful misconduct as to those last two occasions.

Tritex Sportswear, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commw. 335,

Page 415

315 A.2d 322 (1974) governs this case. There, as here, claimant compiled, within a short period, “an impressive history of absenteeism and tardiness.” 12 Pa. Commw. at 336, 315 A.2d at 323. In that case also, the final absence which precipitated claimant’s discharge was due to illness, and this court held that claimant was entitled to compensation benefits because her last absence “was the result of illness rather than willful misconduct.” 12 Pa. Commw. at 338,315 A.2d at 324.[3]

Substantial evidence supports the finding of illness as cause; we find no capricious disregard of evidence by the referee; and there has been no error of law.

We remain mindful of the sharp legal distinction between (1) cause for discharge under an employer’s policy and (2) willful misconduct which bars unemployment compensation benefits.

Accordingly, we affirm the decision.

ORDER
AND NOW, this 10th day of April, 1980, the March 15, 1979 order of the Unemployment Compensation Board of Review, at No. B-170051, affirming the allowance of benefits to Frank R. Dennis, Jr., is affirmed.

[1] Our scope of review in these cases is by now axiomatic: it extends only to constitutional violations, errors of law, and the substantiality of the evidence supporting the findings. Willful misconduct is a legal conclusion subject to our review; in that review, we are mindful that the employer bears the burden of demonstrating willful misconduct, and a decision against the burdened party must be affirmed in the absence of a capricious disregard of competent evidence. Sun Oil Co. v. Unemployment Compensation Board of Review, 48 Pa. Commw. 21, 408 A.2d 1169 (1979).
[2] The referee found that claimant had accumulated thirteen and one-half points by the time of his discharge; employer’s brief likewise recites the total as thirteen and one-half points. However, our review of the record, and of the list of dates incorporated in employer’s brief, indicates that the total did not exceed 12.5 points, but the point count in no way affects our conclusion in this case.
[3] Employer directs us to Dudley v. Unemployment Compensation Board of Review, 36 Pa. Commw. 186, 387 A.2d 996
(1978), where this court stated in part that prior suspensions, although not a prerequisite to a determination of willful misconduct, can be an additional element “which may be considered by the compensation authorities.” 36 Pa. Commw. at 191, 387 A.2d at 998. Employer thus emphasizes claimant’s August, 1978 suspension and his attendance record. However, the critical language in Dudley is that prior suspensions “may be considered” by the compensation authorities. Dudley hence indicates that earlier disciplinary action is not determinative of willful misconduct.

Page 416

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412 A.2d 1128

W. R. Grace, Petitioner v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review, Respondent.

Commonwealth Court of Pennsylvania.Argued March 14, 1980
April 10, 1980.

Unemployment compensation — Willful misconduct — Burden of proof — Illness — Discharge policy.

1. In an unemployment compensation case, the employer has the burden of proving willful misconduct. [414]

2. Where illness causes an early departure and absence from work which precipitate a discharge from employment, an unemployment compensation claimant is not guilty of willful misconduct, even though the early departure and absence violate an employer’s discharge policy, and is entitled to benefits. [414]

Argued March 14, 1980, before Judges MENCER, CRAIG and WILLIAMS, JR., sitting as a panel of three.

Page 413

Appeal, No. 787 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Frank R. Dennis, Jr., No. B-170051.

Application to Bureau of Employment Security for unemployment compensation benefits. Benefits awarded. Employer appealed to the Unemployment Compensation Board of Review. Appeal denied. Employer appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.

Richard L. Orwig, with him William W. Runyeon, of Edelman, Saylor, Malsnee and Orwig, for petitioner.

Charles G. Hasson, Assistant Attorney General, with hi Richard Wagner, Chief Counsel and Edward G. Biester, Jr.,
Attorney General, for respondent.

OPINION BY JUDGE CRAIG, April 10, 1980:

Petitioner W. R. Grace (employer) appeals from the decision of the Unemployment Compensation Board of Review which affirmed the referee’s award of unemployment benefits to Frank R. Dennis, Jr. (claimant).

Under employer’s company policy, employees accumulate one (1) point for each day of absence, and one-half (1/2) point for each occasion of late arrival or early departure; the policy does not differentiate absence due to illness from absence for any other cause. Employees who accumulate thirteen points within any calendar year are subject to discharge.

Employer discharged claimant on October 19, 1978, for alleged breach of that policy. Employer contends that claimant’s record of absence and tardiness establishes

Page 414

willful misconduct within the meaning of Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).[1]

The referee found that claimant had been suspended in August of 1978 because of his accumulation of points up to that date; he also found that claimant was absent October 9, 1978, left early on October 17, and was absent on October 18, which allegedly brought claimant’s total points beyond the forbidden level.[2] However, the referee further found that claimant’s early departure on October 17 and his absence on October 18 were the result of illness, certified by a physician.

The referee therefore concluded that the employer had failed to satisfy the burden of demonstrating willful misconduct. We agree. Because illness caused the early departure and absence which precipitated the discharge, even if claimant violated the “no-fault” discharge policy, there was no willful misconduct as to those last two occasions.

Tritex Sportswear, Inc. v. Unemployment Compensation Board of Review, 12 Pa. Commw. 335,

Page 415

315 A.2d 322 (1974) governs this case. There, as here, claimant compiled, within a short period, “an impressive history of absenteeism and tardiness.” 12 Pa. Commw. at 336, 315 A.2d at 323. In that case also, the final absence which precipitated claimant’s discharge was due to illness, and this court held that claimant was entitled to compensation benefits because her last absence “was the result of illness rather than willful misconduct.” 12 Pa. Commw. at 338,315 A.2d at 324.[3]

Substantial evidence supports the finding of illness as cause; we find no capricious disregard of evidence by the referee; and there has been no error of law.

We remain mindful of the sharp legal distinction between (1) cause for discharge under an employer’s policy and (2) willful misconduct which bars unemployment compensation benefits.

Accordingly, we affirm the decision.

ORDER
AND NOW, this 10th day of April, 1980, the March 15, 1979 order of the Unemployment Compensation Board of Review, at No. B-170051, affirming the allowance of benefits to Frank R. Dennis, Jr., is affirmed.

[1] Our scope of review in these cases is by now axiomatic: it extends only to constitutional violations, errors of law, and the substantiality of the evidence supporting the findings. Willful misconduct is a legal conclusion subject to our review; in that review, we are mindful that the employer bears the burden of demonstrating willful misconduct, and a decision against the burdened party must be affirmed in the absence of a capricious disregard of competent evidence. Sun Oil Co. v. Unemployment Compensation Board of Review, 48 Pa. Commw. 21, 408 A.2d 1169 (1979).
[2] The referee found that claimant had accumulated thirteen and one-half points by the time of his discharge; employer’s brief likewise recites the total as thirteen and one-half points. However, our review of the record, and of the list of dates incorporated in employer’s brief, indicates that the total did not exceed 12.5 points, but the point count in no way affects our conclusion in this case.
[3] Employer directs us to Dudley v. Unemployment Compensation Board of Review, 36 Pa. Commw. 186, 387 A.2d 996
(1978), where this court stated in part that prior suspensions, although not a prerequisite to a determination of willful misconduct, can be an additional element “which may be considered by the compensation authorities.” 36 Pa. Commw. at 191, 387 A.2d at 998. Employer thus emphasizes claimant’s August, 1978 suspension and his attendance record. However, the critical language in Dudley is that prior suspensions “may be considered” by the compensation authorities. Dudley hence indicates that earlier disciplinary action is not determinative of willful misconduct.

Page 416

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