Gelles v. Commonwealth, Unemployment Compensation Board of Review

OpinioN by

Judge Rogers,

Harold L. Gelles, a former parts manager for an automobile agency bas appealed from an order of tbe Unemployment Compensation Board of,Review denying bim compensation on tbe ground itbat bis unemployment was tbe result of bis discharge from work for willful misconduct. Section 402(e) of the Unemployment Compensation Law.¹

A referee found that tbe claimant failed to report for work on January 15 and 16, 1981 or to notify bis employer of bis intended absences; and that tbe claimant was aware ior .should have been aware of the employer’s policy requiring employees who were unable to work to report off prior to tbe start of the day’s shift.

The claimant contends that he properly reported his absences to his employer. He testified with respect to the January 15 absence that he told his supervisor on January 14,1981 that he did not feel well and would take work home with Mm to do if he Was not able to report for work the following day. With respect to the January 16 absence, the claimant testified that he came into work at 10:00 a.m., although his shift began at 8:00 a.m., solely to inform his employer of his illness.

While absenteeism due to illness does not generally constitute willful misconduct, a failure to report an illness in the manner required by company rules constitutes willful misconduct. The question of whether notice was given to the employer is one of fact. Gochenauer v. Unemployment Compensation Board of Review, 59 Pa. Commonwealth Ct. 354, 357, 429 A.2d 1246, 1248 (1981).

The evidence as to the notice required of employees by the claimant’s employer is conflicting. The referee found that the employer’s rules required employees who anticipated absence from work to report off prior to the start of a shift and this finding settles the conflict. The claimant clearly failed to conform to the employer’s rule as his own testimony confirms; hence he is disqualified. The claimant additionally defends his conduct on the ground that he intended no harm to his employer. “To be guilty of willful misconduct, an employee need not intend .to wrong the employer. ’ ’ American Process Lettering, Inc. v. Unemployment Compensation Board of Review, 50 Pa. Commonwealth Ct. 272, 276, 412 A.2d 1123, 1125 (1980).

Order affirmed.

Order

Aud Now, this 8th day of November, 1982 the order of the Unemployment Compensation Board of Review in the above-captioned case is affirmed.

1 Act of December 5, 1936, Second Es. Sess., P.L. (1937) 2897, as amended, 43 P.S. §802(e).