On appeal from the Civil Service Commission.
Lora and Larner. The opinion of the court was delivered by Larner, J.A.D.
This is an appeal from the determination of the Civil Service Commission which found Jack Feldman, a fireman employed by the Town of Irvington, guilty of two departmental charges and affirmed the sanction of discharge imposed by the employer. The infractions leading to appellant's discharge consisted of (1) failure to report to the fire apparatus on October 17, 1976 pursuant to a box alarm, and (2) violation of sick leave procedure by failing to inform the supervisor on November 29, 1976 that Feldman's physician advised that he would be able to return to light work when he felt better.
We are satisfied that the record amply supports the Commission's finding that Feldman did in fact violate the regulations of the department with respect to the two charges at issue. We do, however, conclude that the penalty of discharge
is so utterly disproportionate with the offenses and the mitigating factors involved therewith that the administrative decision is arbitrary and unreasonable. Sabia v. Elizabeth , 132 N.J. Super. 6 (App. Div. 1974); Rivell v. Civil Service Comm'n , 115 N.J. Super. 64 (App. Div.), certif. den. 59 N.J. 269 (1971); Newark v. Massey , 93 N.J. Super. 317 (App. Div. 1967); Moorestown Tp. v. Armstrong , 89 N.J. Super. 560 (App. Div. 1965), certif. den. 47 N.J. 80 (1966); West New York v. Bock , 71 N.J. Super. 143 (App. Div. 1961), aff'd 38 N.J. 500 (1962); Plainfield v. Simpson , 50 N.J. Super. 250 (App. Div. 1958); East Paterson v. Civil Service Dep't , 47 N.J. Super. 55 (App. Div. 1957); Dutcher v. Civil Service Dept. , 7 N.J. Super. 156 (App. Div. 1950). A review of the underlying facts is appropriate to our determination.
Feldman was on duty at the firehouse on October 17, 1976 at 7:10 A.M. when a "box alarm" was rung. It is undisputed that appellant was ill at the time and under the care of Dr. Mark Levey for an illness diagnosed as Meniere's disease, the symptomatology of which includes intermittent acute spells of dizziness, hearing loss, ringing in the ear and a sensation of ear blockage. The Commission found as a fact that it "does not doubt that appellant was ill at the time," but "it does believe that appellant should have and could have responded to the alarm at least for the purpose of reporting to his superior that he was unable to go out with the fire apparatus."
Feldman testified that on hearing the alarm he started to report to the assigned vehicle, but became dizzy after getting part way down the stairs and therefore returned upstairs where he had some coffee.
Although there is no question that appellant should have reported his incapacity to his supervisor so that the equipment could be fully manned by a substitute, and that
such failure is a serious matter when considered from the viewpoint of the dangerous activity involved in fire-fighting, it is clear that appellant's offense is not the failure to report to the apparatus without justifiable reason, but the failure to notify his superior of his inability to do so. The record and the Commission's findings fully substantiate the fact that appellant was truly ...