Irvine v. Commonwealth, Unemployment Compensation Board of Review
Irvine v. Commonwealth, Unemployment Compensation Board of Review
Opinion of the Court
Opinion by
This is an appeal by Kenneth C. Irvine (Claimant) from an order ■ of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s denial of benefits pursuant to Section 40.2(e) of the Unemployment Compensation Law (Law), Act of December 5; 1936, Second Ex. Sess., P.L. (. 1937) 2897, as amended, 43 P.S. §802(e). We affirm.
Claimant was employed as a dryer operator for Keystone Filler & Manufacturing Company (Keystone) for approximately two years. On January 27, 1981, he was discharged by Keystone for failure to report to work on the previous day and failure to phone in to report his absence. The Office of Employment Security (OES) denied Claimant’s request for benefits-and, following-a hearing, a referee affirmed. On appeal to the Board, the denial of benefits was upheld. Appeal to this Court followed.
'Claimant urges, however, that the record shows that his absence was unavoidable and that Keystone had ample notice that he would not be in, so that his failure to phone in did not rise to the level of willful misconduct. See Penn Photomounts, Inc. v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 407, 417 A.2d 1311 (1980). He urges that his employer knew that he regularly rode with fellow employees and had been informed by those employees that they were unable to get to work because of a heavy snowstorm, and employer knew also that Claimant had no phone in his home. Claimant testified additionally that he was unable to leave his house to get to a phone because his nineteen month old baby was sick.
In Penn Photomounts we held that an employee could rely on less formal notice of reporting an absence than the employer ordinarily required if it could be shown in the record that the employer had accepted such notice as sufficient in the past. In Penn Photo-mounts the claimant demonstrated that the procedure she followed in reporting absences to her department instead of the main office was also generally followed by her co-workers. The Board also found that she had never been reprimanded for reporting her absences in this matter. In the instant case, Claimant was reprimanded for failure to report in, and there is no indi
In-addition, we note that Claimant’s discharge resulted from failure to report or phone in his absence on a day he was scheduled to return to work from a three day suspension.
Order
Now, January 11,1984, the order of the Unemployment Compensation Board of Review in the above referenced ..matter, No. B-198392, dated August 14, 1981, is hereby affirmed.
That, subsequent to the reprimand, Claimant twice failed to phone in an absence and was not disciplined does not, in our view, demonstrate that he was thereafter excused from phoning in.
Claimant was suspended for leaving his wort station.
Dissenting Opinion
Dissenting Opinion by
Regretably, I must dissent.
While it is undisputably true that an employee’s failure to properly report the reasons for his or her failure to report to work pursuant to an established company policy can constitute disqualifying willful
Here, the record shows that at the referee’s hearing the employer simply introduced evidence of various suspensions the claimant had received while working at the plant for various infractions of the company’s rules. None of these suspensions were for the failure to call in an absence, however, and only one of the suspensions was for “not showing up for work[,] ” a suspension the claimant received after a November 1, 1980 absence. While the claimant did testify before the referee that he had been told after his November 1980 suspension to call in his absences, he further testified that he then informed his supervisor that he did not have a car or telephone and was then told to simply do his best. The employer did not dispute this testimony, and the only other evidence presented concerning employer’s absence reporting policy was the
While the record shows that the claimant was not a model employee, the stated reason for his discharge, the only reason considered by the unemployment compensation authorities below, and the only reason we may consider here, was Ms alleged failure to follow his employer’s absence reporting procedures. Since, the record, in my view, could only support a finding that the claimant’s actions were consistent with his employer’s absence reporting .policy, I would reverse.
Reference
- Full Case Name
- Kenneth Irvine v. Commonwealth of Pennsylvania, Unemployment Compensation Board of Review
- Cited By
- 1 case
- Status
- Published