I was terminated for tardiness from my employer on 2/12/2013 in Pennsylvania. I applied for UC Benefits in Pennsylvania and the claim was initially denied-tardiness was willful misconduct. I appealed that decision and the hearing was held on 4/22/2013. The referee decided on 4/26/13 that I did not show good cause for my tardiness which determined to be willful misconduct. However, I DID present the evidence and good cause reasons for my tardiness during the hearing. I intend to appeal his decision to the Board of Review because he left out critical details of the hearing along with some other important information. I believe had he not done so, I would have probably gotten my UC benefits. Do you think that I can get the decision reversed by the Board because of the omitted information which showed good cause??
Here are the details of my situation/details of the hearing (including details of my testimony he left out):
1. I was employed with Company P from May 27, 2008 to Feb 12, 2013.
2. On October 10, 2012, the Employer placed the Claimant on a ninety day probationary period due to excessive tardiness.
3. My work schedule was 11am to 730pm (I would leave approx. 1030am using public transportation.)
4. On November 4, 2012 the Claimant was approved for intermittent Family and Medical Leave (FMLA
) for any health related issues that occurred due to the Claimant's immune system medication.
(This is very incorrect-I told the referee: I was approved for FMLA in October 2011 for HIV related issues and side effects caused by my HIV medication, Atripla. Side effects included, but not limited to: XXXXX XXXXX problems waking up)
5. On January 11, 2013, the Employer extended the Claimant's ninety day probation an additional thirty days. The Claimant was advised that he was required to "report to work on time at 11:00 a.m. on each day when you do not have a medical-related tardiness .... "
6. During the thirty day period, the Claimant did have non-medically related lateness.
7. On February 12, 2013, the Employer discharged the Claimant for excessive tardiness.
My employer did not show at the hearing.
Here is the referee's reasoning:
The Claimant testified that he deals with a serious medical issue which would result in his being late due to the reaction to the medications he takes. The Claimant also testified that the public transportation would be late. The Claimant further testified that his probation was extended another thirty days in order for the Claimant to report to work on time when he did not have a medical-related tardiness. The record is clear that during the extended probationary period, the Claimant had additional dates where he was late and it was due to his medical issues.
(Those indicated dates were FMLA days where I was out the entire day or 1-3 hrs late. He left out details of my intermittent FMLA. If I had medical-related health issues, I could take an entire day off or I could let my employer know that I would be 1-3 hours late. I had to notify them at least an hour before my start time. These days off/tardiness periods were indicated on my timesheets as FMLA time. I also told him that I would often have trouble waking up, causing me to oversleep in the morning due to the HIV med side effects, if I did not wake up before 10am to notify my employer, I would still do my best to get to work and I would arrive a few minutes late-which was interpreted as habitual tardiness. I submitted proof via company memo that my arrival times were a only few minutes, 2 to 11 mins at most, past my start time. I also had to notify my supervisors even if I was going to be 1 minute late-which I did do every time per company policy.)
His decision continues:
The Referee does not credit the testimony of the Claimant. The Claimant testified that he would leave thirty minutes prior to his start time at work. The Claimant was aware or should have been aware that his employment was in jeopardy due to his habitual tardiness. At that point, it was incumbent upon the Claimant to leave earlier for work in order to deal with any unforeseen events such as passengers with wheelchairs who needed to be loaded on the bus, and issues with traffic or construction on the roads. Moreover, the Referee concludes that the Employer only counted non-medical related tardiness in its final determination to discharge the Claimant. Therefore, as the Claimant has not provided any good cause or justification for his non-medical related tardiness, benefits are denied.
(I did testify that some mornings I did leave earlier for the bus if I could and sometimes I did. I mentioned to him again about the side effects of my HIV medication which made it often difficult to wake up in the mornings, let alone earlier than I did already.)
My Conclusion: I believe that I gave good cause for my tardiness. HIV related health reasons and public transportation issues beyond my control. Do you think the Board would rule in my favor??