Claimant
failed to report for work on March 6, 2013 and did not notify Employer that she
would be absent. On March 7, 2013, she received and signed a written warning
for that absence and failure to notify. Although it advised that further
attendance policy violations could result in termination of employment, this
warning was marked as a “First Warning” and did not refer to any tardiness or
absences other than the March 6, 2013 incident. On March 13, 2013, Claimant was
absent from work, but notified Employer of her absence. On March 14, 2013, the
following day, Claimant arrived at work five minutes late and was discharged by
Employer for tardiness and absenteeism.
It is
well established that excessive absenteeism or tardiness can constitute willful
misconduct. Ellis v. Unemployment Compensation Board of Review, 59 A.3d
1159, 1163 (Pa. Cmwlth. 2013); Grand Sport Auto Body, 55 A.3d at 190; Fritz
v. Unemployment Compensation Board of Review, 446 A.2d 330, 333 (Pa.
Cmwlth. 1982). “Employers have ‘the right to expect that ... employees will
attend work when they are scheduled, that they will be on time, and that they
will not leave work early without permission.’” Grand Sport Auto Body,
55 A.3d at 190 (quoting Fritz). Thus, we have held that willful
misconduct was shown where the claimant had a pattern of repeated tardiness or
absences without good cause and the claimant had received warnings concerning
his or her tardiness or absences. See Ellis, 59 A.3d at 1161, 1163-64
(claimant was late six times in a two and one-half week period, five of which
were latenesses of 30 minutes, before she was discharged for arriving at work
45 minutes late); Grand Sport Auto Body, 55 A.3d at 190-92 (claimant was
late 16 times in six months and was absent three days without excuse in the
final month that he worked); Fritz, 446 A.2d at 331, 333 (in
approximately two-month period, claimant was late six times, five times by 45
minutes or more, was absent once and left work early once).
The
Board did not find any pattern of habitual or chronic tardiness or absences.
Rather, the Board found only that Claimant had two absences and a single
incident of being five minutes late for work. This does not rise to the level of excessive
absences and tardiness that constitutes willful misconduct. Nor can the conduct
for which Claimant was discharged be properly characterized as willful
misconduct on the ground that she violated Employer’s rules requiring notification
of absences and lateness. While Claimant did not comply with Employer’s
requirement that she call in the case of the first absence, she received a
warning and was not discharged for that conduct. Claimant complied with
Employer’s attendance policy with respect to the second absence. In the final
incident, Claimant did not call Employer to notify that she would be five
minutes late for work. .) The mere failure to notify of such a brief lateness
on a single occasion does not by itself show the deliberate or intentional
violation of Employer’s rules or disregard of standards of conduct that is
required to support a finding of willful misconduct. See Philadelphia
Parking Authority v. Unemployment Compensation Board of Review, 1 A.3d 965,
968-69 (Pa. Cmwlth. 2010) (violation of employer rule that was not shown to be
intentional or deliberate does not constitute willful misconduct and does not
shift burden to claimant to show good cause for rule violation).
We
recognize that Employer contended that Claimant had a history of other absences
and incidents of tardiness, in addition to the two absences and one five-minute
lateness that preceded her discharge. Employer’s witnesses, however, had no
knowledge of those alleged absences and latenesses, and Employer’s
documentation consisted solely of a list for the unemployment compensation
proceedings with no evidence as to how it was prepared or on what it was based,
not time or attendance records kept in the ordinary course of business.
Hearsay evidence, even if admitted without objection, cannot
support a finding of fact unless it is corroborated by other competent evidence
in the record. There was no evidence that corroborated Employer’s list of prior
absences and tardiness; Claimant disputed Employer’s contentions that she had a
history of unexcused absences and lateness, and the written warning that
Claimant received and signed did not indicate that Claimant had any history of
tardiness or any unexcused absences other than the March 6, 2013 incident.
Accordingly, the Board did not find that
Claimant had any history of absences or lateness before the three incidents of
March 6, 2013, March 13, 2013, and March 14, 2013.
Because
the two absences and single incident of tardiness found by the Board are insufficient
to constitute willful misconduct, we reverse the order of the Board.
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.
