Rung v. Unemployment Compensation Board of Review

689 A.2d 999, 1997 Pa. Commw. LEXIS 66, 1997 WL 54961
Commonwealth Court of Pennsylvania·Decided February 12, 1997·No. No. 1606 C.D. 1996·Published·Cited by 5 cases

Opinion

COLINS, President Judge.

Cathy Rung (Claimant) appeals from the order of the Unemployment Compensation [1000] Board of Review (UCBR) that affirmed the referee’s denial of benefits to Claimant pursuant to Section 402(e) of the Unemployment Compensation Law (Law), Act of December 5,1936, Second Ex.Sess., P.L. (1937) 2897, os amended, 43 P.S. § 802(e).1

Claimant was last employed as head teller for the Woodlands Bank (Employer) from August 28,1995 through January 31,1996 at a wage rate of $7.75 per hour. Employer had a policy for its tellers that provided a “no-fault” point system depending upon the dollar range of overage or shortage per occurrence. More specifically, the points ranged from one point for an occurrence of $10.00 to $25.00 in overages/shortage, to the maximum of 20 points where the difference exceeded $300.00. Under Employer’s policy, any single difference of $600.00 or more or an accumulation of 26 points might result in disciplinary action up to and including termination. Additionally, Employer’s policy provides for a one-week grace period during which the employee could correct a monetary difference. However, the teller is not permitted to keep any overage or use personal funds to cover any shortage in order to avoid accumulating points. The referee’s findings of fact state that Claimant was aware of Employer’s policy and that prior to joining Woodlands Bank, she had 16 years banking experience, including at least one and one-half years as a teller.

On December 12,1995, Claimant had accumulated a total of 27 points under Employer’s policy. One occurrence that resulted in the point accumulation took place in October of 1995 when Claimant cashed a third-party cheek for a non-depositor, without first verifying whether the customer was a depositor to ensure coverage of the amount cashed. For this error, Claimant received 15 points on October 20, 1995. She was placed on a 60-day probation and received warning that accumulation of additional points could result in further disciplinary measures up to and including termination. Because Claimant was a head teller, Employer wished to avoid a disciplinary suspension of Claimant that would undermine her authority with the other tellers. Subsequent to the 60-day probation, Claimant, on December 19, 1995, accumulated two points due to a $46.00 overage.

As a result, on January 11,1996, Claimant was placed on a one-week disciplinary suspension without pay and was told to report back to work on January 19, 1996. But on January 24, 1996, another event occurred that resulted in point accumulation for Claimant. A customer, who had cashed a certificate of deposit at another teller’s window, and who received the money in $20.00 and $50.00 bills, proceeded to Claimant’s window and requested $100.00 bills. Having just returned from her break and feeling hurried, Claimant gave the customer the requested denominations. Almost immediately after completing the transaction, but after the customer had left the bank, Claimant realized she had a $600.00 shortage in her till. Claimant immediately reported the shortage to her supervisor and admitted responsibility for it, although she felt she had been the victim of a scam. Claimant further averred that her mistake was not deliberate, but rather the result of carelessness in counting during the transaction.

Employer allowed Claimant to make one telephone call to the customer to inquire whether the customer had received more than the correct amount of money from Claimant. The customer denied receiving more funds than appropriate, and no amount was recovered for restitution during the one-week grace period. Employer discharged Claimant on February 2, 1996 because of violations of Employer’s policy.

The Job Center issued a determination denying Claimant benefits, and Claimant appealed. After a hearing at which Claimant, along with a paralegal, and Employer’s witness testified, the referee affirmed the Job Center’s determination. The Findings of Fact note that it is not uncommon for tellers to have eight or nine overage or shortage occurrences during a six-month period; how[1001] ever, Claimant had four “major” occurrences during the five-month period of her employment. The referee further found that Claimant’s errors were the result of poor judgment, carelessness, and failure to adhere to generally accepted teller procedures. The Board affirmed on May 24, 1996, and this appeal followed.

Our scope of review in an unemployment compensation case is limited to a determination of whether constitutional rights were violated, errors of law were committed, or finding that essential facts are not supported by substantial evidence. Lee Hospital v. Unemployment Compensation Board of Review, 161 Pa.Cmwlth. 464, 637 A.2d 695 (1994).

On appeal, Claimant avers that the Board erred in finding that her actions were in disregard of Employer’s overage/shortage policies and were without good cause, thereby rendering her ineligible for benefits in accordance with Section 402(e) of the Law, 43 P.S. § 802(e). Claimant also contends that Employer failed to prove that Claimant’s actions were deliberate and willful as required for being disqualified for benefits under Section 402(e).

This Court has consistently reaffirmed that:

Where an employee has been discharged based upon willful misconduct in violating employer’s work rule, the burden is on the employer to establish both the existence of a reasonable work rule and its violation. ... Once the employer proves the existence of a rule, its reasonableness, and the fact of its violation, the burden of proof shifts to the claimant to prove that he had good cause for his action....
While this Court has held that, normally, inadvertent, non-intentional violations of an employer’s work rules will not constitute willful misconduct, ... we have created an exception to this general rule where an employee’s conduct could jeopardize an employer’s effective operations or place the public at risk.

United Refining Company v. Unemployment Compensation Board of Review, 661 A.2d 520 (Pa.Cmwlth.1995).. Applying the United Refining rationale to the present case, we find Employer’s “point system” to be a feature of what presumably is Employer’s broad-based policy of encouraging the highest standards of accuracy among its tellers. Although this system might well benefit from reexamination and revamping, there is no dispute that Claimant failed to offer any compelling explanation for her errors other than carelessness and inattentiveness to her job duties.

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Rung v. Unemployment Compensation Board of Review, 689 A.2d 999, 1997 Pa. Commw. LEXIS 66, 1997 WL 54961 (Pa. Ct. App. 1997).

689 A.2d 999 (Rung v. Unemployment Compensation Board of Review) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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