Opinion
Argued June 2, 1980
September 11, 1980.
Unemployment compensation — Wilful misconduct — Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897 — Absences — Failure to report absence — Good cause for rule violation — Burden of proof.
1. Absence from work and the failure to report an absence in the manner required by rules of the employer after being warned of the consequences of such conduct may properly be found to constitute wilful misconduct, precluding the receipt of benefits under the Unemployment Compensation Law, Act 1936, December 5, P.L. (1937) 2897, by the employe discharged as a result of such actions. [645]
2. An employe who offers no valid excuse or justification for a failure to report an absence in the manner prescribed by his employer may properly be found to have failed to sustain his burden of showing the existence of good cause for noncompliance with the rule and may properly be denied unemployment compensation benefits when discharged as a result of such wilful misconduct. [645]
Argued June 2, 1980, before Judges WILKINSON, JR., MacPHAIL and WILLIAMS, JR., sitting as a panel of three.
Appeal, No. 738 C.D. 1979, from the Order of the Unemployment Compensation Board of Review in case of In Re: Claim of Rogers K. Lincoln, No. B-169709.
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: Affirmed.
Harvey S. Miller, of Shertzer and Gray, for petitioner.
Elsa D. Newman-Silverstine, Assistant Attorney General, with her Richard Wagner, Chief Counsel, and Edward G. Biester, Jr., Attorney General, for respondent.
Rogers Lincoln appeals from an order of the Unemployment Compensation Board of Review affirming a referee's decision that denied Lincoln unemployment compensation benefits pursuant to Section 402(e) of the Unemployment Compensation Law, 43 P. S. § 802 (e). We affirm.
Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended.
Lincoln worked as an equipment operator for Nomad-Layton (employer) until May 15, 1978. On May 12, 1978, the employer notified all employees that the next day, Saturday, would be a regularly scheduled work day. The employer specified that an employee lacking a valid reason for not working would receive a discharge. The employer also told its employees to report to a supervisor if they could not work that day. Lincoln did not report to work on Saturday, nor did he report to his supervisor to explain why he missed work. He testified that he did not report to work because he had an appraiser come to his house that day to evaluate his personal property in connection with divorce proceedings. The employer discharged Lincoln for his absence and for his failure to report his absence in the prescribed manner. The referee held that Lincoln's actions amounted to willful misconduct. The Board affirmed.
Where an employer has rules concerning the reporting of absences and the claimant has been warned about complying with those rules, the failure to report an absence in the proper manner may amount to willful misconduct. Chiango v. Unemployment Compensation Board of Review, 33 Pa. Commw. 610, 382 A.2d 789 (1978). Of course, if an employee's deviation from his employer's instructions was reasonable or justified under the circumstances, then the deviation will not constitute willful misconduct. McLean v. Unemployment Compensation Board of Review, 476 Pa. 617, 383 A.2d 533 (1978); Curtis v. Unemployment Compensation Board of Review, 32 Pa. Commw. 462, 379 A.2d 1069 (1977).
The record in the instant case clearly supports the Board's finding that Lincoln received notice to report to work on that Saturday and to report to a supervisor if he had a valid reason for not working. The record also shows that Lincoln did not follow the employer's instructions to report to work or to report his reason for not working to his supervisor. Before the referee, the claimant offered no excuse or justification for his failure to report his absence in the manner prescribed by the employer. Lincoln had the burden of demonstrating "good cause" for his noncompliance with his employer's instructions. Holomshek v. Unemployment Compensation Board of Review, 39 Pa. Commonwealth Ct. 503, 395 A.2d 708 (1979). He failed to satisfy that burden.
Accordingly, we affirm the Board's order denying benefits.
ORDER
AND NOW, the 11th day of September, 1980, the order of the Unemployment Compensation Board of Review in Decision No. B-169709, denying benefits to Rogers Lincoln, is affirmed.