Monday, November 02, 2015

UC - willful misconduct - actual cause of termination - waiver - "standard of conduct" - UCBR is fact-finder

Holdings Acquisition Co., dba Rivers Casino v. UCBR – Cmwlth. Court – 10-19-15 – unreported memorandum opinion



In this willful misconduct case, the claimant was found eligible (or as they like to say, not ineligible), because


            - employer claim in Cmwlth Court appeal was not raised before the referee or board, so it was waiver --   An employer “must prove that the act in question was the actual reason for the claimant’s discharge.” Browning–Ferris Industries of Pennsylvania, Inc. v. Unemployment Compensation Board of Review, 561 A.2d 856, 857 (Pa. Cmwlth. 1989). Issues not properly raised before the Referee and the Board are waived on appeal. See Wing v. Unemployment Compensation Board of Review, 436 A.2d 179 (Pa. 1981) (quoting Zakrzewski v. Unemployment Compensation Board of Review, 381 A.2d 503, 504 (Pa. 1978)) (holding that issue “is not properly before us” because it was not presented to Referee or Board).  Waiver is also embodied in Pennsylvania Rule of Appellate Procedure 1551(a) 


            - standard of conduct is “not an exact science” -  In Woodson v. Unemployment Compensation Board of Review, 336 A.2d 867 (Pa. 1975), the Supreme Court explained: “A determination of whether an employee has engaged in willful misconduct can ... only be made by considering what standard of conduct an employer reasonably requires. Standards expected by one employer may of course not be the standards of another employer. Willful misconduct cannot therefore be considered in a vacuum. It must be considered in relation to the particular employees and to the reasonable standards expected by a particular employer.”  Id. at 868 (emphasis added). Stated otherwise, the “standard of conduct” analysis is not an exact science.


An unreported case may not be cited “binding precedent” but can be cited “for its persuasive value. . . .”  See 210 Pa. Code § 69.414 (a) and   Pa. R.A.P.  3716 [45 Pa.B. 3975; Saturday, July 25, 2015]

If the case is old, the link may have become stale and may not work, but you can use the case and date to find the opinion in another source (e.g., Westlaw, Lexis, Google Scholar)