Monday, October 19, 2009

UC - referee duty to unrepresented claimant - sexual harassment

Murray v. UCBR - Cmwlth. Court - October 19, 2009

This case was not reported, but it has some useful things in it, nonetheless.

Referee duty to unrepresented claimant -
When a party is unaccompanied by counsel at a hearing before the referee, the referee is charged with a heightened responsibility of supervising the presentation of evidence. Drs. Katsur & Associates v. UCBR, 509 A.2d 926 (Pa. Cmwlth. 1986). The referee must act reasonably in assisting an unrepresented party’s development of necessary facts but need not advise a party on evidentiary questions or specific points of law. Bennett. The referee must advise a claimant of his right to be represented by counsel, to offer witnesses and to cross-examine adverse witnesses. Catanese v. UCBR, 452 A.2d 929 (Pa. Cmwlth. 1982). However, it is true that a referee need not advise a claimant with respect to the conduct of the hearing at every stage. Rohrbach v. UCBR, 450 A.2d 323 (Pa. Cmwlth. 1982). Any failure to develop an adequate record must be shown to be prejudicial to the claimant; mere harmless error will not support a reversal. Snow v. UCBR, 433 A.2d 922 (Pa. Cmwlth. 1981).
In Bennett v. UCBR, 445 A.2d 258 (Pa. Cmwlth. 1982), the claimant alleged that she was not afforded a full and fair hearing as the referee failed to assist her in developing relevant testimony, inter alia, “alleged sexual harassment by patrons of which her employer was aware but did not remedy.” This Court concluded that the “very sparse record” and the “two-page hearing transcript . . . of which only less than half of a page is germane to" the issues "revealed that the referee did not ask sufficient questions to aid the claimant in establishing a necessitous and compelling cause for leaving her job. Bennett, 445 A.2d at 459. We also noted, that the referee did not inform claimant of her right to counsel or to cross-examine witnesses, and, thus, the hearing was less than “full and fair.” Thus, we concluded that the referee should have more “thoroughly and reasonably extracted testimony” on these issues. Id.
Here, however, although claimant correctly recited the law, her allegation that the referee failed to properly help her develop the record and establish facts that were supportive of her claim is unsupported by evidence of record. Moroever, the referee told claimant of her right to counsel and other rights, explained the hearing procedures, asked questions of her and attempted to elicit relevant testimony.

Sexual harassment
Sexual harassment can be a necessitous and compelling reason for separating from employment, provided the employee has taken reasonable and prudent steps to alleviate the problem. Weissman v. Unemployment Compensation Board of Review, 502 A.2d 782 (Pa. Cmwlth. 1986). Thus, a claimant must establish that she took “common sense action” such that the employer was aware of the nature of the objection. Colduvell v. Unemployment Compensation Board of Review, 408 A.2d 1207 (Pa. Cmwlth. 1979). See Homan v. Unemployment Compensation Board of Review, 527 A.2d 1109 (Pa. Cmwlth. 1987) and Collier Stone Company v. Unemployment Compensation Board of Review, 876 A.2d 481 (Pa. Cmwlth. 2005); Comitalo v. UCBR, 737 A.2d 342 (Pa. Cmwlth. 1999).