Irvine v. Commonwealth, Unemployment Compensation Board of Review

Opinion by

Judge Doyle,

This is an appeal by Kenneth C. Irvine (Claimant) from an order ■ of the Unemployment Compensation Board of Review (Board) which affirmed a referee’s denial of benefits pursuant to Section 40.2(e) of the Unemployment Compensation Law (Law), Act of December 5; 1936, Second Ex. Sess., P.L. (.1937) 2897, as amended, 43 P.S. §802(e). We affirm.

Claimant was employed as a dryer operator for Keystone Filler & Manufacturing Company (Keystone) for approximately two years. On January 27, 1981, he was discharged by Keystone for failure to report to work on the previous day and failure to phone in to report his absence. The Office of Employment Security (OES) denied Claimant’s request for benefits-and, following-a hearing, a referee affirmed. On appeal to the Board, the denial of benefits was upheld. Appeal to this Court followed.

*499Failure to report to work or to report the reasons for a claimant’s absence may constitute willful misconduct under Section 402(e) of the Law. Azar v. Unemployment Compensation Board of Review, 34 Pa. Commonwealth Ct. 23, 382 A.2d 995 (1978). The record in this case shows that Claimant had been warned in the past for failure to show up for work or phone in the reason for his absence. It is undisputed that Claimant did not report for work on the day before he was discharged and did not phone in.

'Claimant urges, however, that the record shows that his absence was unavoidable and that Keystone had ample notice that he would not be in, so that his failure to phone in did not rise to the level of willful misconduct. See Penn Photomounts, Inc. v. Unemployment Compensation Board of Review, 53 Pa. Commonwealth Ct. 407, 417 A.2d 1311 (1980). He urges that his employer knew that he regularly rode with fellow employees and had been informed by those employees that they were unable to get to work because of a heavy snowstorm, and employer knew also that Claimant had no phone in his home. Claimant testified additionally that he was unable to leave his house to get to a phone because his nineteen month old baby was sick.

In Penn Photomounts we held that an employee could rely on less formal notice of reporting an absence than the employer ordinarily required if it could be shown in the record that the employer had accepted such notice as sufficient in the past. In Penn Photo-mounts the claimant demonstrated that the procedure she followed in reporting absences to her department instead of the main office was also generally followed by her co-workers. The Board also found that she had never been reprimanded for reporting her absences in this matter. In the instant case, Claimant was reprimanded for failure to report in, and there is no indi*500cation in the record that other employees were excused from the obligation to phone in absences.1 And unlike the claimant in Penn Photomounts, he did not pursue another reporting procedure, but relied on an inference from the inability of his co-workers to get .to work to give notice to Keystone that he would also not be in. The Board did not err in concluding that this did not constitute sufficient notice.

In-addition, we note that Claimant’s discharge resulted from failure to report or phone in his absence on a day he was scheduled to return to work from a three day suspension.2 Under such circumstances, we believe it behooved Claimant to comply with the employer’is requirements, notwithstanding the snow and the. asserted sickness of his child. The failure to phone in, when it was clear from prior warnings that the employer was displeased with failures of this nature, showed disregard for the employer’s interest sufficient to-constitute willful misconduct.

Order

Now, January 11,1984, the order of the Unemployment Compensation Board of Review in the above referenced ..matter, No. B-198392, dated August 14, 1981, is hereby affirmed.

That, subsequent to the reprimand, Claimant twice failed to phone in an absence and was not disciplined does not, in our view, demonstrate that he was thereafter excused from phoning in.

Claimant was suspended for leaving his wort station.