Friday, August 14, 2015

UC - willful misconduct - progressive disciplinary system

Philadelphia Corp. for Aging v. UCBR – Cmwlth. Court – August 5, 2015 – unreported memorandum opinion



Employer did not satisfy its burden of proving willful misconduct where it did not follow its own progressive disciplinary policy (PDP) in terminating claimant’s employment.   The employer presented no evidence that its PDP permitted it to reinstate claimant’s probationary status, where claimant had completed probationary period and became regular employee subject to PDP.


“Where an employer has established a specific rule applicable to all employees, it must follow its own progressive discipline policy when disciplining specific employees.” Looney v. Unemployment Compensation Board of Review, 529 A.2d 612, 614 (Pa. Cmwlth. 1987.)


Employer is correct that it can legally terminate employment of an at-will employee without strictly adhering to its Disciplinary Actions Guide; however, Employer relies on wrongful termination cases, which do not discuss eligibility for UC benefits, in its attempt to extend that proposition to the instant UC case.  UC Law, on the other hand, examines whether an employer adheres to its established policy in disciplining or terminating an employee because “promulgation of specific rules puts employees on notice that the employer will not consider such conduct to be adverse to its interest until the requisite number of violations have been committed.” PMA Reinsurance Corporation v. Unemployment Compensation Board of Review, 558 A.2d 623, 626 (Pa. Cmwlth. 1989). If an employer does not follow its disciplinary policies when discharging a claimant, we have held that the employer has consequently not established, for purposes of UC Law, “that the discharge was for willful misconduct related to [the] [c]laimant’s work.” Id. In these circumstances, the claimant will not be deemed ineligible for UC benefits pursuant to Section 402(e) of the Law notwithstanding the employer’s prerogative to discharge at-will employees for any number of reasons.


Here, Employer does not address the Referee’s finding that, after Claimant successfully completed probation on December 22, 2013, she became a regular employee subject to the rights and protections set forth in Employer’s personnel handbook, including being disciplined in accordance with the Disciplinary Actions Guide. Employer has provided no record evidence of the disciplinary procedures, as provided for in its Disciplinary Actions Guide, or specified the basis upon which it could reinstate a 90-day probationary period for a regular employee who is tardy or absent in violation of Employer’s rules.6 Because Employer did not proffer the Disciplinary Actions Guide or any testimony of any other procedures it follows as record evidence, there was no evidence to support Employer’s argument that it could reinstate Claimant’s probation as it did. The Board, therefore, could consider Claimant as a regular, non-probationary employee for purposes of Employer’s disciplinary policy, and there was no evidence that the policy provided for termination under the facts found in this case.



This  summary is also posted at the PLAN Legal Update, which is searchable  and can be accessed without a password.


The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414. – soon to be Rule 3716 ***


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