Monday, October 03, 2011

UC - willful misconduct - single incident must be "sufficiently serious"

Liebert v. UCBR - Cmwlth Court - 9/26/11- unpublished memorandum opinion







A single failure to record a nine-minute absence on a timesheet does not constitute willful misconduct under the principles established in Williams v. UCBR, 380 A.2d 932 (Pa. Cmwlth. 1977).




Cases in which a single incident was held to constitute willful misconduct indicate that this determination has been made only where the single incident was "sufficiently serious" to justify that finding, such as unauthorized deliveries and misrepresentations; diversion of company property from a designated destination to a private garage; improperly selling company property; concealing the identity of a prospective customer in a bad faith attempt to extract additional remuneration; and assaulting a co-worker. Id. at 935.




By contrast, single incidents of minor infractions, such as missing a meeting, not remaining indoors while on home confinement, and reclining in the company truck during work time, are not "sufficiently serious" to constitute willful misconduct. Id.




It is true that falsifying a timesheet, for any duration, constitutes willful misconduct, Temple University of the Commonwealth System of Higher Education v. UCBR, 565 Pa. 178, 772 A.2d 416 (2001), the Pennsylvania Supreme Court concluded that it was willful misconduct to falsify employer‟s records in order to receive additional pay, even where it was done with a supervisor‟s permission.




However, in this case, there was no sufficient proof of such conduct. Employer's evidence consists solely of testimony was based upon phone records that were never introduced into evidence. Although Claimant did not raise a hearsay objection, under the legal residuum rule, hearsay evidence admitted without objection will be given its natural probative effect only if it is corroborated by any competent evidence in the record.‟" Greer v. UCBR, 4 A.3d 733, 737 n.7 (Pa. Cmwlth. 2010) (quoting Walker v. UCBR, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). Here, there is no such corroboration in the record. Claimant did not admit to any wrongdoing and the employer witness did not testify from her own observation and knowledge.



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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.

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