Wednesday, March 26, 2014

UC - willful misconduct - excessive v. limited absenteeism/tardiness

Morgan v. UCBR – Cmwlth. Court – March 26, 2014 – unreported memorandum opinion


Claimant failed to report for work on March 6, 2013 and did not notify Employer that she would be absent. On March 7, 2013, she received and signed a written warning for that absence and failure to notify. Although it advised that further attendance policy violations could result in termination of employment, this warning was marked as a “First Warning” and did not refer to any tardiness or absences other than the March 6, 2013 incident. On March 13, 2013, Claimant was absent from work, but notified Employer of her absence. On March 14, 2013, the following day, Claimant arrived at work five minutes late and was discharged by Employer for tardiness and absenteeism.

It is well established that excessive absenteeism or tardiness can constitute willful misconduct. Ellis v. Unemployment Compensation Board of Review, 59 A.3d 1159, 1163 (Pa. Cmwlth. 2013); Grand Sport Auto Body, 55 A.3d at 190; Fritz v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa. Cmwlth. 1982). “Employers have ‘the right to expect that ... employees will attend work when they are scheduled, that they will be on time, and that they will not leave work early without permission.’” Grand Sport Auto Body, 55 A.3d at 190 (quoting Fritz). Thus, we have held that willful misconduct was shown where the claimant had a pattern of repeated tardiness or absences without good cause and the claimant had received warnings concerning his or her tardiness or absences. See Ellis, 59 A.3d at 1161, 1163-64 (claimant was late six times in a two and one-half week period, five of which were latenesses of 30 minutes, before she was discharged for arriving at work 45 minutes late); Grand Sport Auto Body, 55 A.3d at 190-92 (claimant was late 16 times in six months and was absent three days without excuse in the final month that he worked); Fritz, 446 A.2d at 331, 333 (in approximately two-month period, claimant was late six times, five times by 45 minutes or more, was absent once and left work early once).

The Board did not find any pattern of habitual or chronic tardiness or absences. Rather, the Board found only that Claimant had two absences and a single incident of being five minutes late for work.  This does not rise to the level of excessive absences and tardiness that constitutes willful misconduct. Nor can the conduct for which Claimant was discharged be properly characterized as willful misconduct on the ground that she violated Employer’s rules requiring notification of absences and lateness. While Claimant did not comply with Employer’s requirement that she call in the case of the first absence, she received a warning and was not discharged for that conduct. Claimant complied with Employer’s attendance policy with respect to the second absence. In the final incident, Claimant did not call Employer to notify that she would be five minutes late for work. .) The mere failure to notify of such a brief lateness on a single occasion does not by itself show the deliberate or intentional violation of Employer’s rules or disregard of standards of conduct that is required to support a finding of willful misconduct. See Philadelphia Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965, 968-69 (Pa. Cmwlth. 2010) (violation of employer rule that was not shown to be intentional or deliberate does not constitute willful misconduct and does not shift burden to claimant to show good cause for rule violation).

We recognize that Employer contended that Claimant had a history of other absences and incidents of tardiness, in addition to the two absences and one five-minute lateness that preceded her discharge.  Employer’s witnesses, however, had no knowledge of those alleged absences and latenesses, and Employer’s documentation consisted solely of a list for the unemployment compensation proceedings with no evidence as to how it was prepared or on what it was based, not time or attendance records kept in the ordinary course of business.

Hearsay evidence, even if admitted without objection, cannot support a finding of fact unless it is corroborated by other competent evidence in the record. There was no evidence that corroborated Employer’s list of prior absences and tardiness; Claimant disputed Employer’s contentions that she had a history of unexcused absences and lateness, and the written warning that Claimant received and signed did not indicate that Claimant had any history of tardiness or any unexcused absences other than the March 6, 2013 incident. 
 
Accordingly, the Board did not find that Claimant had any history of absences or lateness before the three incidents of March 6, 2013, March 13, 2013, and March 14, 2013.

Because the two absences and single incident of tardiness found by the Board are insufficient to constitute willful misconduct, we reverse the order of the Board.

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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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