Summary
upholding the denial of UC benefits based on the claimant's history of absenteeism where it was clear from the record "that the claimant's history and pattern of absences precipitated his discharge, not any one incident"
Summary of this case from Greenwood Table Game Servs. v. Unemployment Comp. Bd. of ReviewOpinion
Argued February 2, 1981
March 3, 1981.
Unemployment compensation — Wilful misconduct — Habitual tardiness and absenteeism — Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897.
1. Habitual tardiness and absenteeism in the face of warnings as to the consequences of such behavior is properly found to constitute wilful misconduct precluding receipt of benefits under the Unemployment Compensation Law, Act of December 5, 1936, P.L. (1937) 2897, by an employe discharged as a result of such conduct. [250]
Argued February 2, 1981, before Judges MENCER, CRAIG and PALLADINO, sitting as a panel of three.
Appeal, No. 1330 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Michael Dotson, No. B-171807.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Affirmed.
Michael Dotson, petitioner, for himself.
Karen Durkin, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Harvey Bartle, III, Acting Attorney General, for respondent.
In this unemployment compensation appeal, the claimant, Michael Dotson, a former phlebotomist for Albert Einstein Medical Center, questions the board's affirmance of the referee's decision denying him benefits under Section 402(e) of the Unemployment Compensation Law, on the ground his dismissal from employment resulted from willful misconduct.
Unemployment Compensation Board of Review.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
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).
The board's findings, from substantial evidence including claimant's own testimony, reveal that claimant had compiled an impressive list of absenteeism and tardiness particularly in his last year of employment. From December 1, 1977 to February 7, 1978, claimant was late eight times and absent five times. From March 2, 1978 to April 13, 1978, he was late twelve times. Even after his second suspension, in early December 1978, for habitual tardiness and absenteeism, claimant continued this conduct by being late for work on December 22 and 26 of 1978 and January 5, 8, 17, 23 and 31 of 1979 and being absent January 9 and 29 of 1979. We have repeatedly held that excessive tardiness despite multiple warnings amounts to willful misconduct. Harbutz v. Unemployment Compensation Board of Review, 10 Pa. Commw. 235, 309 A.2d 840 (1973).
Claimant's protestations that he was discharged for an absence justified by his illness are not meritorious. The record is clear that claimant's history and pattern of absences and lateness precipitated his discharge, not any one incident. This argument is also belied by claimant's own testimony that he could not particularize which latenesses were due to illness, while admitting that oversleeping and personal problems were among the causes of his unpredictable attendance.
Harbutz, supra, and Woodson v. Unemployment Compensation Board of Review, 7 Pa. Commw. 526, 300 A.2d 299 (1973) state clearly that repeated, unexcusable tardiness or absences constitute willful misconduct. We cannot say as a matter of law that the board erred in so characterizing claimant's conduct.
Affirmed.
ORDER
AND NOW, this 3rd day of March, 1981, the May 1, 1979 order of the Unemployment Compensation Board of Review at No. B-171807 is affirmed.