Thursday, October 28, 2010

UC - record evidence - violation of work rule

N. Lee Ligo and Associates v. UCBR - unpublished - October 28, 2010

Decision must be based on evidence produced at the hearing - Pursuant to 34 Pa. Code § 101.106, the Board’s scope of review of an appeal from the decision of a referee is that it “may review both the facts and the law pertinent to the issues involved on the basis of the evidence previously submitted . . . .” The Board is not permitted to consider post-hearing factual communications in its determination and must consider only the evidence previously submitted at the hearing. Croft v. UCBR, 662 A.2d 24 (Pa. Cmwlth. 1995); Tener v. UCBR, 568 A.2d 733 (Pa. Cmwlth. 1990).

Violation of work rule - employer b/p - claimant conduct must be intentional and deliberate - When the misconduct involves a work rule violation, the employer bears the burden of proving the existence of the work rule and its violation. Walsh v. UCBR, 943 A.2d 363 (Pa. Cmwlth. 2008). Moreover, in order for Employer to demonstrate willful misconduct, it must present evidence that Claimant’s conduct was intentional and deliberate. See Grieb v. UCBR, 573 Pa. 594, 827 A.2d 422 (2003). A determination of whether an action constitutes willful misconduct requires a consideration of all of the circumstances, “including the reasons for the employee’s noncompliance with the employer’s directive.” Rebel v. UCBR, 555 Pa. 114, 117, 723 A.2d 156, 158 (1998).