Summary
In Kindrew v. Unemployment Compensation Board of Review, 37 Pa. Commw. 9, 388 A.2d 801 (1978), we recognized that physical illness can constitute "good cause" for an employee's noncompliance with an employer's directive, and that it is unreasonable to apply a directive to a person whose ability to comply is negated by illness.
Summary of this case from Brillhart v. Commonwealth, Unemployment Compensation Board of ReviewOpinion
Argued June 5, 1978
July 25, 1978.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Violation of employer's rule or demand — Unreasonable request — Illness.
1. The violation of a rule of an employer or failure to comply with a demand of the employer can constitute wilful misconduct so that an employe discharged as a result of such conduct is ineligible for benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, but such conduct does not constitute wilful misconduct where the employer's rule or demand is unreasonable and the refusal by the employe to comply is not unreasonable under all the circumstances. [12]
2. The failure of an employe to comply with a demand of her employer to work regardless of her physical condition when the employe was too ill to work would not constitute wilful misconduct precluding the receipt of unemployment compensation benefits by the employe when she is discharged as a result of such refusal. [12]
Argued June 5, 1978, before Judges WILKINSON, JR., MENCER and ROGERS, sitting as a panel of three.
Appeal, No. 619 C.D. 1977, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Bonita Kindrew, No. B-141072.
Application to the Bureau of Employment Security for unemployment compensation benefits. Application denied. Applicant appealed to the Unemployment Compensation Board of Review. Denial affirmed. Applicant appealed to the Commonwealth Court of Pennsylvania. Held: Reversed and remanded.
Edward M. Pulaski, with him William G. Schwab, for petitioner.
Susan Shinkman, Assistant Attorney General, with her Robert P. Kane, Attorney General, for respondent.
Bonita Kindrew has appealed from an order of the Unemployment Compensation Board of Review affirming a referee's decision to deny benefits because Kindrew had been discharged from her employment for wilful misconduct. See Section 402(e) of the Unemployment Compensation Law, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P. S. § 802(e).
Kindrew was last employed by the Hickory Run Restaurant as a waitress. Just before the Memorial Day weekend, 1976, her employer told her and other employes that he expected the holiday to be a busy time and that no leaves would be granted for that weekend for any reason. Kindrew was scheduled to work the three to eleven o'clock P.M. shift on Friday of the Memorial Day weekend. At about 12:00 noon on that day Kindrew had a friend call her employer by telephone with the message that she was ill and could not work. The employer responded that unless Kindrew appeared for work she would be fired. Kindrew then went to the restaurant to demonstrate to her employer that she was too ill to work. The employer told her that she must nevertheless work as ordered. Kindrew refused to work and was discharged. The undisputed evidence was that in normal circumstances Hickory Run employes were expected to give two hours notice of their inability to work.
At the hearing before the compensation referee no representative of the employer appeared. Over the objection of Kindrew's counsel, the referee placed in the record several Bureau of Employment Security forms upon which the employer had recorded the reasons for Kindrew's dismissal, including some alleged improper conduct occurring before the Memorial Day, 1976 weekend. On this evidence and Kindrew's own testimony, the referee concluded that by reason of the conduct predating the Memorial Day weekend and of her unexcused absence on Friday of that weekend, Kindrew's unemployment was the result of her wilful misconduct and that she was ineligible for benefits. The Board of Review affirmed and this appeal followed.
As the information provided by the employer on the Bureau of Employment Security forms admitted by the referee over objection was clearly inadmissible, there is no evidence of record supporting a conclusion that Kindrew was guilty of wilful misconduct at any time before the Memorial Day weekend. The Board of Review concedes this, but argues that Kindrew's refusal to work on Friday of the holiday weekend in violation of the special order of the employer constituted wilful misconduct.
A deliberate refusal to comply with an employer's rule or demand ordinarily constitutes wilful misconduct. Strohecker v. Unemployment Compensation Board of Review, 33 Pa. Commw. 526, 382 A.2d 160 (1978). A violation of the rule or demand is not wilful misconduct, however, if the evidence shows that the employe's action was justifiable and reasonable in the light of all circumstances and was thus taken with good cause. Unemployment Compensation Board of Review v. Iacano, 30 Pa. Commw. 51, 357 A.2d 239 (1976).
However, the refusal by an employe to comply with a rule or demand which is unreasonable in application to the employe's circumstances is not wilful misconduct. Frumento v. Unemployment Compensation Board of Review, 466 Pa. 81, 351 A.2d 631 (1976). Certainly, the rule in this case, which required the presence of the employe at work on pain of dismissal and allowing of no exceptions, was unreasonable with respect to an employe too ill to work.
Hence, if Kindrew was too ill to work her refusal was justifiable and reasonable and was taken with good cause and the employer's demand was unreasonable applied to her circumstances. On the other hand, if she was not ill her refusal to work was unreasonable; and in such case, although the employer's demand would be unreasonable with respect to employes who were ill, it was not unreasonable with respect to Kindrew. The referee made no finding on the factual issue of whether Kindrew was ill, seeming to base his decision on a conclusion that the employer's rule was reasonable. Since the fact of Kindrew's illness or not is crucial to a proper decision, we must return the record for that finding and a decision based thereon.
ORDER
AND NOW, this 25th day of July, 1978, the order of the Unemployment Compensation Board of Review dated February 23, 1977, denying benefits to Bonita Kindrew, is hereby reversed and the record is remanded to the Board of Review for a finding and decision consistent with the opinion herein.