Friday, September 05, 2008

UC - willful misconduct - working to the best of one's ability

Thompson v. UCBR - Commonwealth Court - September 5, 22008 - unreported memorandum decision

http://www.courts.state.pa.us/OpPosting/CWealth/out/294CD08_9-5-08.pdf
Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job does not amount to willful misconduct. Geslao v. UCBR, 519 A.2d 1096, 1097 (Pa. Cmwlth. 1987). In this regard, “a finding that a claimant has worked to the best of his ability negates a conclusion of willful misconduct.” Norman Ashton Klinger & Associates, P.C. v. UCBR, 561 A.2d 841, 843 (Pa. Cmwlth. 1989).

However, contrary to Claimant’s assertion, a claimant’s failure to work to the best of his ability can constitute willful misconduct. Specifically, this Court has explained:

When...an employee’s on the job performance is below the level of his or her ability and this conduct continues over a period of time despite the employee being aware of it as such, it is considered a conscious or careless disregard of the employer’s interest and constitutes willful misconduct. Younes v. UCBR, 467 A.2d 1227, 1228 (Pa. Cmwlth. 1983).

Further, “a showing of actual intent to wrong the Employer is not required. Claimant’s conscious indifference to his employment duties is enough to support a finding of willful misconduct.” Cullison v. UCBR, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).

We reject Claimant’s assertion that the Board incorrectly focused on whether Claimant worked to the best of his ability. This standard has a foundation in our precedent. Not working to the best of a person’s ability contains the element of intentionality that rises to willful misconduct if the person is capable of performing the job properly but does not do so.

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