On appeal from Board of Review, Department of Labor and Industry.
Fritz and Morgan. The opinion of the court was delivered by Morgan, J.A.D. Fritz, P.J.A.D. (concurring).
[167 NJSuper Page 36] Enraged by a coemployee's persistent, unremitting and sexually offensive verbal and physical abuse, claimant seized the nearest object at hand, a 25-pound roast of beef, and hurled it at her tormenter. This conduct resulted in her discharge from employment. Following application for
unemployment compensation benefits, she was found guilty of misconduct, disqualified for benefits for the six weeks following her discharge and ordered to refund $492 in benefits she had previously received. She appeals.
The facts recounted by the Board of Review in the proceedings on remand establish that claimant was employed for nine months by the Great Atlantic & Pacific Company (A & P) as a meat wrapper. In July 1976 she was assigned to the Mount Holly store for a three-week stint of temporary duty. Early on the first day of the second week of that assignment, a meat cutter, Al Hahn, who had not been on duty the previous week, introduced himself to her by suddenly grabbing her, pushing her against a wall and, while holding a knife with a 10 - 12-inch blade, issuing her an invitation to a sexual encounter in obscene and unrepeatable language. She was released only when another accidentally intruded on the scene and admonished Hahn to "knock it off." Hahn, however, remained undaunted. Throughout the remainder of that week and Monday of the next week Hahn repeatedly directed a flow of obscene remarks to her, renewed invitations to sexual adventures, normal and perverse, without, however, physically assaulting her.
At some time during the week claimant complained to the delicatessen manager, a female, who informed her that Hahn always behaved like that and counselled her to get used to it. Claimant testified that she did not complain to the store manager because she had observed his presence during some of these remarks to which he responded only with a giggle. She felt that in these circumstances a complaint to him would have been futile.
On August 2, 1976, the day of the incident which resulted in her discharge, the meat department was busy. Several customers were waiting for orders to be filled. One such customer had been waiting for some time and claimant apparently conveyed the customer's impatience to Hahn. He responded to this advice with yet more obscene and unrepeatable language, with the result that, in a rage over the
cumulative effect of her experience during the week, she heaved the meat roast at him. Hahn was not injured.
Hahn denied use of offensive language and denied the assault. He was at a loss to explain claimant's sudden violence. Despite that no one from the A & P testified to hearing obscene language from Hahn, the Board of Review expressly found "that the claimant was subjected to vile and salacious language."
Nonetheless, it concluded that her act of assaulting Hahn constituted misconduct within the meaning of N.J.S.A. 43:21-5(b), thus disqualifying her from benefits for the statutory period. The Board apparently took the view that concluding otherwise would condone violence as an appropriate response to verbal conduct. It noted that claimant had alternative means of relief available to her. She could have complained to the store manager despite his lack of action during the times he was present. The Board reasoned that on the first day when she was physically assaulted she could not have known of his complaisant and accepting attitude toward Hahn's depredations. Further, she could have lodged a union complaint, particularly since she had been successful with a previous and unrelated grievance. She could have taken her problem to personnel. The Board concluded that "her action in striking the meat cutter on August 2, 1976 was a disregard of the standards of behavior which the employer has the right to expect of its employees." Accordingly, it labeled her behavior as misconduct and worthy of a partial disqualification for benefits.
Misconduct is a term undefined in the statute. Judicial attempts to imbue the term with substantive meaning have, however, insisted upon the ingredients of wilfulness, deliberateness and intention if an employee's act is to qualify as misconduct. See Beaunit Mills v. Employment Security Div. , 43 N.J. Super. 172, 183 (App. Div. 1956), certif. den. 23 N.J. 579 ...