Sunday, October 11, 2015

UC - willful misconduct - absence - pre-trial incarceration


Miller v. UCBR – Cmwlth. Court – October 9, 2015 –


order directing opinion to be reported http://www.pacourts.us/assets/opinions/Commonwealth/out/2282CD14ORD_12-23-15.pdf?cb=1

 


 

Case remanded where claimant was absent from work for two weeks during pre-trial incarceration on charge of violation of his probation, where

 

            - claimant, by his wife, gave employer notice of the incarceration

 

            - claimant was found not guilty of having violated his probation

 

“Absenteeism alone, while grounds for discharge, is not a sufficient basis for denial of unemployment benefits. An additional element, such as lack of good cause for absence, is necessary.” Runkle v. UCBR, 521 A.2d 530, 531 (Pa. Cmwlth. 1987). Factors that are considered in determining whether absenteeism constitutes willful misconduct are: (1) excessive absences; (2) failure to notify the employer in advance of the absence; (3) lack of good or adequate cause for the absence; (4) disobedience of existing company rules, regulations, or policies with regard to absenteeism; and (5) disregard of warnings regarding absenteeism. Petty v. Unemployment Compensation Board of Review, 325 A.2d 642, 643 (Pa. Cmwlth. 1974).

 

The predominate issue in this case . . ..is whether Claimant had good cause for the absences so as to preclude or negate a finding of willful misconduct. See Medina v. UCBR, 423 A.2d 469, 471 (Pa. Cmwlth. 1980). The concept of “good cause” has been characterized as an action of the employee that is justifiable or reasonable under all the circumstances.   “Absence from work due to pre-trial incarceration is not, itself, willful misconduct.” Bruce v. UCBR, 2 A.3d 667, 671 (Pa. Cmwlth. 2010) (citing Hawkins, 472 A.2d at 1192).

 

Pursuant to Hawkins, Wertman, and Bruce, the dispositive issue in this case is whether Claimant violated his probation. . . . The docket entries are vague and do not demonstrate conclusively that Claimant was found not to have violated the terms of his probation.

Here, the Board disregarded Claimant’s testimony, determined for itself that Claimant violated probation, and, in doing so, overlooked the critical fact that a criminal trial court had already ruled on the probation case.  Notably, the Board did not make any specific credibility determination with respect to Claimant’s testimony that the criminal trial court found that he did not violate the terms of his probation. Where the Board fails to make necessary findings and credibility determinations, we must remand to the Board.

 

Accordingly, we vacate the Board’s order and remand for the Board to determine the credibility of Claimant’s testimony that the criminal trial court found that he did not violate his probation and for additional finding(s) based upon that credibility determination. Because the outcome of the criminal trial court case is absolutely vital to determining whether Claimant violated his probation, on remand, the Board, on its own or on further remand to a referee, shall provide Claimant with the opportunity to submit court documentation – e.g., a court order, a hearing transcript, etc. – to prove that the trial court found that he did not violate probation. . . . .The Board shall then issue a new decision that accounts for its credibility determination and additional finding(s) of fact.

 

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Pa. R.A.P.  3716; 210 Pa. Code § 69.414 (a) Citing Judicial Opinions.  (a) Parties may...cite an unreported panel decision of this court issued after January 15, 2008, for its persuasive value, but not as binding precedent.

 

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