Dunn v. Commonwealth, Unemployment Compensation Board of Review

Opinion by

Judge Bdatt,

The claimant¹ appeals here from an order of the Board² which found him to be ineligible for unemployment compensation benefits because of willful misconduct.³

The claimant was employed by K-Mart Corporation (employer) when he suffered a work-related injury on August 30, 1979. On October 15, 1979, his physician informed him that he could return to work on October 22, 1979, and the claimant so informed his employer. He continued to suffer pain, and he informed his employer a few days before he was scheduled to return that he would be unable to return as scheduled. The employer informed him, however, that, if he did not return to work on October 22, his services would be terminated. When the claimant then requested lighter work, he was told that none was available. After his failure to return to work on October 22, he was discharged on October 24,1979 on the ground that the employer’s rule required the discharge of employees if they were absent without notice for three consecutive days. Although the Office of Employment Security determined that his failure to notify his employer for three consecutive days constituted willful misconduct and both the referee and the Board affirmed the denial of benefits, we must conclude that the findings of the Board, while supported by substantial evidence, do not justify as a matter of law the conclusion that the claimant’s conduct here constituted willful misconduct.

We have previously held that, where the employer asserts that a dismissal was for violation of the employer’s absentee control policy, tbe factfinder must examine the specific requirements of that policy and tbe circumstances surrounding tbe absence to determine whether or not tbe policy was violated. Collins v. Unemployment Compensation Board of Review, 25 Pa. Commonwealth Ct. 538, 360 A.2d 760 (1976). In tbe present case, tbe Board’s findings indicate that tbe claimant made a genuine attempt to notify tbe employer that be would be unable to work on October 22, and that tbe employer informed tbe claimant that failure to return to work on October 22 would result in bis discharge; nevertheless, tbe employer is now arguing that further notification was necessary. Tbe Board concedes in its brief that, bad tbe claimant been discharged for failing to report to work on October 22, be would clearly be eligible now for benefits, for it is well settled that absence from work due to illness does not constitute willful misconduct. Cook v. Unemployment Compensation Board of Review, 42 Pa. Commonwealth Ct. 448, 401 A.2d 8 (1979). And we believe that, because he relied on his employer’s statement that he would be discharged on October 22, it was unrealistic for tbe employer to expect tbe claimant to report off from work on each subsequent day thereafter. See Kindrew v. Unemployment Compensation Board of Review, 37 Pa. Commonwealth Ct. 9, 388 A.2d 801 (1978).

We must conclude, therefore, that tbe claimant’s violation of tbe employer’s rule was tbe natural consequence of bis reliance on tbe employer’s statement to him, and was not a deliberate violation of rules nor a disregard of standards with which tbe employer could reasonably expect compliance. See Flanagan v. Unemployment Compensation Board of Review, 47 Pa. Commonwealth Ct. 120, 407 A.2d 471 (1979). We will therefore reverse tbe Board’s order.

Order

And Now, this 29th day of April, 1981, the order of the Unemployment Compensation Board of Review in the above-captioned case is hereby reversed and remanded for a computation of benefits.

Judge Wilkinson, Jr. did not participate in the decision in this case.

1 James Dunn.

2 Unemployment Compensation Board of Review.

3 Section 402(e) of the Unemployment Compensation Daw, Act of December 5, 1936, Second Ex. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).