Dick v. Commonwealth, Unemployment Compensation Board of Review

417 A.2d 841, 53 Pa. Commw. 285, 1980 Pa. Commw. LEXIS 1662
Commonwealth Court of Pennsylvania·Decided July 29, 1980·No. Appeal, No. 1115 C.D. 1979·Published·Cited by 6 cases

Opinion

Opinion by

Judge MacPhail,

William H. Dick (Claimant) appeals from the decision of the Unemployment Compensation Board of Review (Board) denying him unemployment compensation benefits pursuant to Section 402(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), which states that an employee is ineligible for benefits if discharged for wilful misconduct.1

[287]*287Claimant was employed by Roadway Express, Inc. (Employer) as a tractor-trailer driver. The terms of his employment were that he would be on call twenty-four hours per day, seven days per week until he had worked forty hours. On any day that Claimant was unable to work, he was to call the Employer and “book off.” The Claimant was expected to be at home to receive a phone call on two hours notice to report for work.

On April 15, 1978, Claimant was discharged because the Employer received a busy signal on three occasions when phoning the Claimant to advise him to report for work. The Employer stated, on Bureau (now Office) of Employment Security form UC-45, that Claimant was discharged for “[fjailure to meet work responsibilities — absenteeism. ”

The record shows that the Employer considered the Claimant’s work record for the nine months immediately prior to April 15, 1978 in determining what discipline should be imposed for that infraction. This work record revealed the following: 1) Claimant was suspended for three days on September 20, 1977 because he had missed fifteen work opportunities since May 23, 1977; 2) Claimant received a three day suspension on December 27, 1977 because he had missed six out of nineteen work opportunities immediately prior to that date; 3) Claimant received a three day suspension because he was not at home to receive a call to work on February 11, 1978; and 4) Claimant received a five day suspension on February 23, 1978, because he gave the Employer less than one hour’s notice of his inability to report for a work assignment he had accepted earlier that same morning.

The referee found that Claimant’s unsatisfactory attendance record amounted to wilful misconduct in this case. The Board granted the Claimant a second hearing, with the referee acting as hearing examiner, so [288]*288that further medical evidence could be presented. The Board found that the Claimant’s medical evidence did not establish good cause for his absences and that he had made himself unavailable for work. This conduct amounted to wilful misconduct in the Board’s opinion.

The Claimant presents four questions for our review, but these may be summarized to present the issue as whether the Board’s findings are supported by substantial competent evidence and whether the findings support the legal conclusion of wilful misconduct.

Our scope of review in unemployment compensation cases is to determine that the Board’s findings are free of fraud, legally correct and based on substantial evidence. Questions of credibility and weight of the evidence are for the Board. Gallagher v. Unemployment Compensation Board of Review, 32 Pa. Commonwealth Ct. 160, 378 A.2d 502 (1977). Also, the employer, who succeeded below, is to be given the benefit of any inferences that are reasonably and logically drawn from the evidence. Hinkle v. Unemployment Compensation Board of Review, 9 Pa. Commonwealth Ct. 512, 308 A.2d 173 (1973).

This case presents a slightly different than usual problem with regard to absenteeism because of the on-call status of Claimant. It is clear from the record, however, that Claimant recognized that he had a duty to “book off” on days he would not accept work. Further, although the Board states in its discussion that the Claimant testified that he did report off on all occasions and that the Employer did not refute this, the record shows that the Employer’s testimony does refute that Claimant had “booked off” on the days in question.2 The referee and the Board made no finding on the issue of notice.

[289]*289The Law on absenteeism as wilful misconduct is quite clear. While absence due to illness does not constitute wilful misconduct, failure to report such an absence in the manner prescribed by the employer is wilful misconduct. Gallagher, supra.

In the instant case, Claimant goes to great lengths to prove that his refusals of work were justified, but, apparently, the point of this case is that, if the Claimant had given proper notice of his unavailability for work, he would not have received calls to work in the first place. The record shows that Claimant received no discipline on account of an absence from September 21, 1977 to October 24, 1977; presumably this is because the Employer received proper notice of that illness.

Whether the findings support the conclusion that Claimant’s behavior amounted to wilful misconduct is one of law to be decided by this Court. O’Keefe v. Unemployment Compensation Board of Review, 18 Pa. Commonwealth Ct. 151, 333 A.2d 815 (1975). Where, as here, however, there are no findings on a vital issue, appellate review is not possible. Unemployment Compensation Board of Review v. Kells, 22 Pa. Commonwealth Ct. 479, 349 A.2d 511 (1975). If the only evidence of wilful misconduct on this record were the absences of Claimant, we would remand for findings on the issue of whether proper notice was given to the Employer. However, the Claimant’s discharge was also premised on three incidents not involving absence and we must examine these to determine whether they form an independent basis for a finding of wilful misconduct.

First there is the incident of February 11, 1978; the Claimant was not at home when the Employer called [290]*290him to work. The Claimant testified that he was out to take his daughters home to insure that they would be able to attend school the next day.

The Board stated that Claimant’s failure to make himself available for work, considering his on-call status, must be seen as detrimental to the Employer’s interests. We agree.

Claimant argues that his absence from home was justified because he was fulfilling parental duties. However, he gave no notice to the Employer that he would be unavailable and he did not testify that he made any effort to arrange alternate transportation for his children. Under all the circumstances, the Board’s findjng that his. failure to accept work was detrimental to his Employer’s interests is reasonable.

Second, Claimant failed to give one hour’s notice of his inability to report for work. The record shows that Claimant received a call to work on February 23, 1978 at approximately 6:10 a.m. He was to report at 8 a.m. and agreed to do so. Claimant testified that he had been ill the previous night and, while he thought he was sufficiently recovered to go to work, suffered renewed symptoms after accepting the work call. At the first hearing, the Claimant’s testimony on when he called the Employer back is confused.

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Dick v. Commonwealth, Unemployment Compensation Board of Review, 417 A.2d 841, 53 Pa. Commw. 285, 1980 Pa. Commw. LEXIS 1662 (Pa. Ct. App. 1980).

417 A.2d 841 (Dick v. Commonwealth, Unemployment Compensation Board of Review) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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