The Commonwealth Court has ruled that a man’s history of tardiness and missing work were enough to show willful misconduct and deny the man unemployment benefits despite the fact that his final absence — the one that got him fired — was found to have been justified.

Ruling 5-2, the en banc panel decided the claimant’s 19 unexcused absences from his vehicle detailer job in a seven-month period fell below the standard his employer could expect and were adverse to the employer’s interest of getting work done in a timely fashion. Therefore, the employer had met its burden of showing willful misconduct.

According to the 14-page majority opinion in Grand Sport Auto Body v. Unemployment Compensation Board of Review,penned by Judge Renee Cohn Jubelirer, Andrew Terrell was fired for his history of poor attendance and late arrivals after he got back from his honeymoon in Mexico two days later than he had told his employer he would, because of being rebooked on a later flight.

Terrell subsequently applied for benefits and was awarded unemployment compensation.

The majority’s decision denying those benefits, overturning those of a referee and the Unemployment Compensation Review Board, essentially means an employer may avoid unemployment compensation for an employee with a history of unexcused absences and lateness even when the final instance of such was shown to be justified.

In other words, it seems, a history of willful misconduct may be shown even when a termination stems from an event that does not amount to willful misconduct.

This drew a five-page dissenting opinion from President Judge Dan Pellegrini, who said that while habitual tardiness is certainly grounds for a finding of willful misconduct, none of the cases on the issue dealt with a final absence that was justified.

But the majority, led by Jubelirer, said the board erred by focusing solely on Terrell’s last absence.

According to the opinion, which included a two-page timeline of examples of Terrell’s spotty work attendance, Grand Sport Auto Body had warned Terrell he would be fired if he continued being late, Terrell’s work schedule had been pushed back half an hour to accommodate him, and a manager said he offered to call Terrell in the morning to make sure he was awake and on time.

“We conclude that [Terrell's] pattern of habitual unexcused tardiness and absences, including 19 instances of unexcused absences and tardiness in a seven-month period, fell below the standard of behavior [Grand Sport] had the right to expect of [him] as its employee and were inimical to [Grand Sport's] interests in completing its work in a timely fashion,” Jubelirer said. “Therefore, [Grand Sport] satisfied its burden of showing that [Terrell's] actions did rise to the level of willful misconduct, which, absent his showing good cause, renders [him] ineligible for UC benefits under Section 402(e) of the law.”

Because Grand Sport was able to prove willful misconduct, the burden shifted to Terrell to demonstrate good cause to justify his work history.

Five judges of the court said he did not.

In an analysis on that issue, Jubelirer noted Terrell demonstrated a “decidedly cavalier attitude” toward his employer’s expectation he show up on time when he testified before the referee.

Before the referee, according to the opinion, Terrell did not respond to his employer’s evidence regarding his work history.

He did, however, comment on his history.

At a hearing, according to Jubelirer, Terrell said: “‘I mean, who’s not late more than twice in one month due to, you know, this or that or the other thing? … Not that it should be allowed, but I mean, let’s be real.’”

In Pellegrini’s view, though Terrell “would never receive an award for being a punctual employee,” the board and the referee got it right.

He said the state’s body of case law does not provide for the denial of benefits when the final absence was justified because a termination would have never taken place but for that absence.

“In each of those cases, the employer at some point decided that an employee had crossed the line from being absent or late to chronically being absent or late,” Pellegrini said. “However, none of those cases involve, as here, an employee who proved his final absence was justified.”

“Even where you have a hard and fast rule as to what constitutes excessive absenteeism, the final absence is what determines whether an employee crosses the line from ‘regular’ to ‘excessive’ absenteeism,” the judge, joined by Judge P. Kevin Brobson, added.

It has long been the law in Pennsylvania that employers have the right to expect their employees to attend work when they are scheduled and that habitual tardiness is grounds for a finding of willful misconduct.

The board, in arguing that Terrell was properly given benefits, relied on Runkle v. Unemployment Compensation Board of Review.

In Runkle, the Commonwealth Court said absenteeism alone could be grounds for firing a worker but not for denying benefits when the claimant can show good cause for his or her attendance record.

In that case, the claimant was absent because of documented medical issues, which the court used in support of reversing a referee’s finding of willful misconduct. Therefore, the Grand Sport court said the current matter was distinguishable from Runkle.

In an earlier case from 1981, Dotson v. Unemployment Compensation Board of Review, the court rejected a claimant’s argument that he should be granted benefits because he could show his last absence was justified.

In that case, the claimaint could not particularize which latenesses among his history of tardiness were because of medical reasons and which were not.

The instant case most resembled Dotson, but the employer’s attorney said the Grand Sport court had still clarified an important wrinkle in the law in an area of the law in which there had been some “conflicting opinions.”

“The Commonwealth Court was looking to clarify the situation where an employee has a lengthy history of unexcused absences and tardiness and who is terminated in a situation that, by itself may not be clearly willful misconduct, and then ends up getting benefits,” Randy C. Schauer, of Fox Rothschild in Exton, Pa., said.

Schauer noted the court decided to hear the case en banc on its own volition.

Reached for comment, a spokesperson for the Unemployment Compensation Board of Review said: “The UC Board of Review is reviewing the opinion and considering what, if any, impact it will have,” and declined further comment.

Ben Present can be contacted at 215-557-2315 or bpresent@alm.com. Follow him on Twitter @BPresentTLI.

(Copies of the 19-page opinion in Grand Sport Auto Body v. Unemployment Compensation Board of Review, PICS No. 12-2024, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •