Opinion
Argued December 9, 1976
February 10, 1977.
Unemployment compensation — Wilful misconduct — Burden of proof — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Scope of appellate review — Error of Law — Findings of fact — Substantial evidence — Absenteeism — Tardiness — Insufficient findings of fact — Specificity — Remand.
1. A claimant is not entitled to benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, if the employer proves that the employe was discharged for wilful misconduct. [528]
2. In an unemployment compensation case review by the Commonwealth Court of Pennsylvania is limited to questions of law and a determination of whether the findings of the Referee and the Unemployment Compensation Board of Review are supported by substantial evidence. [528-9]
3. A general finding in an unemployment compensation case that an employe was discharged for unusual absenteeism and frequent tardiness is insufficient to permit judicial review of a conclusion that wilful misconduct occurred where no supporting facts are set forth concerning the nature of the offense, the existence of warnings or the content of relevant employer rules, and a remand is required. [529-30]
Argued December 9, 1976, before Judges CRUMLISH, JR., MENCER and BLATT, sitting as a panel of three.
Appeal, No. 19 C.D. 1976, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Robert W. Heefner, No. B-128795.
Application to 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: Remanded.
Brent A. Petrosky, for appellant.
David Bianco, Assistant Attorney General, with him Sydney Reuben, Assistant Attorney General, and Robert P. Kane, Attorney General, for appellee.
Robert Heefner (claimant) has filed this appeal from an order of the Unemployment Compensation Board of Review (Board), which affirmed the referee's denial of benefits. The referee's decision was based on a finding of willful misconduct under 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), which provides:
An employee shall be ineligible for compensation for any week —
. . . .
(e) In which his unemployment is due to his discharge or temporary suspension from work for willful misconduct connected with his work. . . .
The question of whether the claimant's conduct constituted willful misconduct is one of law, with the burden of proof on the employer. Unemployment Compensation Board of Review v. Cardellino, 24 Pa. Commw. 617, 357 A.2d 710 (1976). Our scope of review here is confined to questions of law and to a determination of whether the findings of the referee and the Board are supported by substantial evidence. Sturniolo v. Unemployment Compensation Board of Review, 19 Pa. Commw. 475, 338 A.2d 794 (1975).
The only findings of fact made by the referee were:
1. Claimant was last employed by Curve-Inn and Restaurant, Mechanicsburg, Pennsylvania, as a bartender at an hourly rate of $3.00. His employment history covered some nine months. His last day of work was May 21, 1975.
2. On said date claimant was involuntarily terminated by reason of an excessive history of tardiness and absenteeism.
The second finding here is the only one that relates to the question of willful misconduct and, on its face, is merely a statement of the employer's reason for discharging the claimant. Careful reading discloses that it does not even state that there was a history of tardiness and absenteeism.
Under the heading "Reasoning," the referee states, "The record as developed reflects generally that claimant did engage an unusual number of absenteeism periods, along with tardiness on some frequent basis." (Emphasis added.) Even if this were treated as a finding of fact, it still falls woefully short of the required specificity. The record here abounds with ambiguities and contradictions on such questions as the actual number of times claimant was absent or tardy, whether any of these occasions were justified or occurred with the employer's permission, whether the employer was notified in advance of absences or tardiness, whether a warning of the employer's dissatisfaction was given or can be implied, and whether there were employer rules governing any of these matters. Without more findings of fact, it would be idle speculation for us to affirm the determination of willful misconduct by the referee and the Board. As we stated in Kells, supra note 2,
See, e.g., Unemployment Compensation Board of Review v. Crilly, 25 Pa. Commw. 21, 358 A.2d 739 (1976); Unemployment Compensation Board of Review v. Williams, 23 Pa. Commw. 188, 350 A.2d 882 (1976); Unemployment Compensation Board of Review v. Kells, 22 Pa. Commw. 479, 349 A.2d 511 (1975); Harbutz v. Unemployment Compensation Board of Review, 10 Pa. Commw. 235, 309 A.2d 840 (1973).
[W]here the record is replete with contradiction, ambiguity, and hearsay testimony appellate review of such issues is virtually impossible without the proper findings of fact. 'An appellate court or other reviewing body should not infer from the absence of a finding on a given point that the question was resolved in favor of the party who prevailed below, for the point may have been overlooked or the law misunderstood at the trial or hearing level.' Page's Department Store v. Velardi, 464 Pa. 276, 346 A.2d 556 (1975).
22 Pa. Commw. at 482, 349 A.2d at 513-14. Therefore, we must reluctantly remand this case to the Board for the taking of additional testimony, if it deems it necessary, and for the making of additional findings of fact. Kells, supra.
We therefore issue the following
ORDER
AND NOW, this 10th day of February, 1977, the record is remanded to the Unemployment Compensation Board of Review for the making of additional findings of fact consistent with this opinion.