Tuesday, May 21, 2013

UC - unsatisfactory performance v. willful misconduct

Kelly Chrysler Jeep Dodge v. UCBR – Cmwlth. Court – May 21, 2013 – unpublished memorandum opinion

Unsatisfactory job performance does not necessarily disqualify a claimant for benefits because incompetence, inexperience or inability to do the job is not willful misconduct. Geslao v. Unemployment Compensation Board of Review, 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. Unemployment Compensation Board of Review, 561 A.2d 841, 843 (Pa. Cmwlth. 1989). A claimant’s failure to work to the best of his ability can constitute willful misconduct in limited situations.

This Court has explained:  When, however 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. Unemployment Compensation Board of Review, 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. Unemployment Compensation Board of Review, 444 A.2d 1330, 1331 (Pa. Cmwlth. 1982).

We agree with the Board that Claimant’s unsatisfactory performance did not rise to the level of willful misconduct.  Employer may have been justified in discharging Claimant for unsatisfactory job performance; however, it failed to offer sufficient evidence that Claimant’s subpar performance constituted willful misconduct.


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.