Durham v. UCBR - Cmwlth Court - July 2, 2009 - unreported memorandum decision
http://origin-www.courts.state.pa.us/OpPosting/Cwealth/out/30CD09_7-2-09.pdf
The court reversed the decision of the Board, affirming the referee decision that Claimant was not eligible for benefits under Section 402(e) of the UC Law, 43 P.S. §802(e), for alleged willful misconduct, because "the facts showed only Claimant’s inability to complete assignments, as opposed to refusal to do so..."
Claimant was unable to catch up on progress notes because of a 5-day absence for health reasons. Even though the Board found Employer’s witnesses credible, the substance of that credited testimony does not support a finding that Claimant intentionally disregarded his job duties. This is simply a case of an employee working to the best of his ability but still falling short of his employer’s expectations. This does not amount to willful misconduct.
On the employer testimony, the Board found that Claimant’s conduct was intentional. However, the testimony established only that Claimant was not performing at a rate which she considered satisfactory, and that in her opinion Claimant’s productivity had declined. Employer’s reaction to Claimant’s supposed misconduct indicates that it, too, believed Claimant was simply incompetent. Indeed, Employer took measures to assist him in completing his backlog of work. This suggests that Employer believed Claimant needed extra time and help in order to complete his workload, not that he refused to complete it or refused to exercise the requisite diligence. The employer witness did not testify that Claimant disregarded Employer’s interests or his duties; her testimony showed only that Claimant did not complete the duties assigned to him. In short, Claimant’s failure to complete his work was the result of “mere incompetence, inexperience, or inability.”
It is important to focus on the definition of “willful.” Actual intent to wrong the employer is not necessary. Willful misconduct can be proven by a finding of “conscious indifference to the duty owed the employer.” Homony v. UCBR, 312 A.2d 77, 78 (Pa. Cmwlth. 1973). However, “mere incompetence, inexperience, or inability which may indeed be sufficient to justify discharge, will not constitute willful misconduct.” Ungard v. UCBR, 442 A.2d 16, 19 (Pa. Cmwlth. 1982). Where an employee works to the best of his ability, it does not amount to willful misconduct. Radio Station WVCH v. UCBR, 430 A.2d 737, 740 (Pa. Cmwlth. 1981); Geslao v. UCBR, 519 A.2d 1096, 1098 (Pa. Cmwlth. 1987); Herndon v. UCBR, 540 A.2d 633, 634 (Pa. Cmwlth. 1988). The record in this case does not support the Board’s conclusion that Claimant’s failure to complete his work constituted willful misconduct.
