Hymon v. Commonwealth
Hymon v. Commonwealth
Opinion of the Court
Opinion by
This action arises on appeal by John Hymon (claimant) from the Unemployment Compensation Board of Review (Board) which affirmed the decision of a referee and the Office of Employment Security which denied unemployment compensation to the claimant. The Board denied the petitioner’s claim based on 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). Section 402(e) provides that an employee shall be ineligible for compensation for any week “in which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. ...” Essentially, our review
Claimant’s girl friend, Sarah Reid, experienced physical problems requiring surgery on or about April 21,1981. Due to complications, claimant met with his immediate supervisor, Joyce Marshall, a department manager, in order to meet the problem of caring for and transporting Ms. Reid to the doctor. Ms. Marshall and Mr. Hymon agreed on an emergency use of vacation leave under which arrangement Mr. Hymon would be able to request from his employer, even on the very day, an emergency vacation day to care for and transport Ms. Reid to the doctor. Mr. Hymon used eight vacation days in this manner during which time Ms. Reid usually contacted Ms. Marshall to arrange the vacation days. Hymon’s employer preferred more formal procedures but accepted contact from Ms. Reid as Mr. Hymon’s liaison rather than direct contact from Mr. Hymon. On April 30, 1981, Ms. Reid called requesting that day and May 1, 1981, as vacation days for Mr. Hymon. She granted the request. However, Ms. Marshall informed Ms. Reid that Mr. Hymon had two more vacation days remaining but that Mr. Hymon had to be at work Monday and Tuesday, May 4 and 5, 1981, since the work operation for those days required his services. Ms. Reid phoned Ms. Marshall again on May 4,1981, to request two more vacation days for Mr. Hymon. Ms. Marshall denied the request and asked Ms. Reid to tell Mr. Hymon to report to work or phone her immediately. Mr. Hymon failed to report for work either day and, consequently, his employer terminated his employment.
The law is well settled that the taking of an unauthorized vacation when directed not to do so constitutes willful misconduct. Lipovsky v. Unemployment Compensation Board of Review, 61 Pa. Commonwealth Ct. 98, 433 A.2d 149 (1981); McAlister v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 376, 395 A.2d 660 (1978); Adams v. Unemployment Compensation Board of Review, 30 Pa. Commonwealth Ct. 500, 373 A.2d 1383 (1977).
Petitioner contends that, under Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976), if the employee’s actions are found to be justifiable and reasonable under the circumstances, then the employee’s actions do not con
For these reasons the Court holds that Mr. Hymon did not show good cause for his absence.
The decision of the Board is, therefore, affirmed.
Order
Now, October 13,1983, the order of the Unemployment Compensation Board of Review, Decision No. B-198215, dated August 11,1981, is hereby affirmed.
This conclusion is based, on and supported by finding of fact number ten which stated: “The employer department manager granted this request [for vacation days on Thursday, April 30 and Friday, May 1, 1981]; however, she added that the claimant, must be at work on May 4 and 5, 1981, due to a certain work operation for which he was needed.”
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