RIO
Supply Inc. v. UCBR – Cmwlth. Court – September 18, 2015
Following
Allegheny Vally School v. UCBR, 697 A.2d 243 (Pa. 1997) and Diversified Care
Management v. UCBR, 885 A.2d 130 (Pa. Cmwlth. 2005) , the Court held that
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an unjustified demotion is a necessitous and compelling reason to quit a job
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hearsay evidence alone is not competent evidence to justify a demotion
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“substantial change” analysis does not apply to a demotion case
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requiring the employer to present evidence that the demotion was justified does
not improperly shift the burden of proof
Generally,
necessitous and compelling cause exists when there is real and substantial
pressure to terminate one’s employment that would compel a reasonable person to
do so under similar circumstances, Wert, and a claimant must show that
he acted with ordinary common sense in quitting, made a reasonable effort to
preserve his employment, and had no real choice but to leave his employment. Cowls
v. UCBR, 427 A.2d 722, 723 (Pa. Cmwlth. 1981). However, the Supreme Court made clear in Allegheny
Valley School that a determination of necessitous and compelling cause in
the case of a voluntary termination after a demotion does not consider the
general factors set forth above but focuses solely on the justification for the
demotion.
In light
of this precedent, it is clear that a demotion premised on an employee’s
inability to perform his job responsibilities is justified and does not
constitute a necessitous and compelling reason to quit. Conversely, a claimant will have
necessitous and compelling reasons to voluntarily terminate employment if the
demotion was unjustified.
A
claimant bears the burden to demonstrate that his voluntary termination of
employment was based upon a necessitous and compelling reason. Wise v. UCBR,
111 A.3d 1256, 1264 (Pa. Cmwlth. 2015). The Board specifically referenced this
burden in its opinion. However, as the Board also noted, a claimant meets this
burden in demotion cases by establishing that the demotion was not justified. Allegheny
Valley School.
In the
present case, Claimant testified that there was no reason, including any
disciplinary reason, for his demotion. Employer sought to rebut Claimant’s
testimony by offering testimony that Claimant’s demotion was premised on a
conversation with a driver who was resigning. This was the only evidence submitted by
Employer relating to Claimant’s demotion. The failed to present this driver as a
witness or otherwise attempt to corroborate this statement by a third party. As
a result, the Board characterized this testimony as hearsay.
The law is well settled that hearsay evidence, admitted
without objection, will be given its natural probative effect and may support a
finding of the Board, if it is corroborated by any competent evidence in the
record. Stugart v. Unemployment Compensation Board of Review, 85 A.3d
606, 608 (Pa. Cmwlth. 2014) (citing Walker v. Unemployment Compensation
Board of Review, 367 A.2d 366, 370 (Pa. Cmwlth. 1976)). However, a finding
of fact based solely upon hearsay will not stand. Borough of Grove City v.
Unemployment Compensation Board of Review, 928 A.2d 371, 374 (Pa. Cmwlth.
2007).
