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.

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This  summary is also posted at the PLAN Legal Update http://planupdate.blogspot.com/, 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 ***

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

UC - negligence v. willful misconduct - prior warnings - lack of findings - remand


Shadowfax Corp. v. UCBR – Auust 4, 2015 – unreported memorandum decision

 


 

The court remanded the case for findings about the employer’s alleged prior warning to claimant about her job performance.   Claimant was an activities coordinator at a mental health facility.  She was fired after she forgot to take one of the residents on a field trip, claiming to have inadvertently/negligently left him behind.

 

Mere negligence or inadvertence on its own does not rise to the level of willful misconduct. Scott v. Unemployment Compensation Board of Review, 36 A.3d 643, 648 (Pa. Cmwlth. 2012). Rather, willful misconduct requires “the additional element of an intentional disregard of the employer’s interests.” Myers v. Unemployment Compensation Board of Review, 625 A.2d 622, 626 n.3 (Pa. 1993). However, repeated conduct of an employee in the face of multiple warnings will support a finding of willful misconduct. Scott, 36 A.3d at 648.   

 

The employer  presented evidence that Claimant had been previously warned concerning issues with her supervision of individuals under Employer’s care.   The Board capriciously disregards evidence when it “willfully or deliberately ignore[s] evidence that any reasonable person would have considered to be important.” Henderson v. Unemployment Compensation Board of Review, 77 A.3d 699, 710 n.5 (Pa. Cmwlth. 2013). Although the Board is the ultimate fact-finder when it comes to resolving evidentiary conflicts and making credibility determinations, the Board may not willfully ignore evidence when making credibility determinations. Id. Here, the referee’s findings of fact, which the Board adopted and incorporated, make no mention of the repeated warnings. Although the referee found Claimant’s testimony credible that she inadvertently left the resident at Employer’s facility, neither the Board nor the referee expressly considered Claimant’s previous warnings regarding supervisory concerns in analyzing whether her actions constituted willful misconduct.

 

In unemployment cases, the Board is the ultimate fact-finder empowered to make all determinations as to witness credibility and evidentiary weight. Peak v. Unemployment Compensation Board of Review, 501 A.2d 1382, 1385 (Pa. 1985).    However, the Board in this case did not make any findings or determinations based on Claimant’s prior received warnings and did not make any credibility determinations concerning Employer’s witnesses. As reflected in Scott, supra, these findings are necessary to a determination of whether Claimant’s actions rise to the level of willful misconduct.   We reiterate that it is the Board’s duty and functional purpose to assign credibility and weight determinations to the evidence presented. See Wardlow v. Unemployment Compensation Board of Review, 387 A.2d 1356, 1357 (Pa. Cmwlth. 1978). The Board’s failure to do so impedes our ability to conduct meaningful appellate review and requires that the case be remanded for such findings.

 

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The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent."    210 Pa. Code 69.414.

 

If the case is not recent, the link in this posting may not work.  In that case, search for the case by name and date on Westlaw, Lexis, Google Scholar, or the court website http://www.pacourts.us/courts/supreme-court/court-opinions/

 

 

 

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