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Sulat v. Board of Review

Decided: December 31, 1980.

ELAINE L. SULAT, APPELLANT,
v.
BOARD OF REVIEW AND WALL TOWNSHIP BOARD OF EDUCATION, RESPONDENTS



On appeal from the Board of Review.

Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.

King

The issue here is whether a full-time school teacher is entitled to unemployment compensation when her contract for the next year has not been renewed but her employer, the Board of Education, has placed her on a substitute list. N.J.S.A. 43:21-4(g)(1) controls.

That subsection of the Unemployment Compensation Law in pertinent part states:

With respect to service performed after December 31, 1977, in an instructional, research or principal administrative capacity for an educational institution, benefits shall not be paid based on such services for any week of unemployment commencing during the period between two successive academic years, . . ., to any individual if such individual performs such services in the first of such academic years (or terms) and if there is a contract or a reasonable assurance that such individual will perform services in any such capacity for any educational institution in the second of such academic years or terms.*fn1

Appellant Elaine Sulat was employed as a full-time teacher under a one-year contract for $11,668 with the Wall Township Board of Education (Board) during the school year September 1, 1978 through June 30, 1979. She had worked as a substitute for the preceding seven school years. By letter dated March 27, 1979 the Superintendent advised her that she would not be rehired for the following year. The claimant, without her consent, was placed on the substitute list for the 1979-1980 academic year by the Board.

On July 3 appellant filed a claim for unemployment benefits. After receiving two weeks benefits, she was notified of ineligibility because of N.J.S.A. 43:21-4(g), supra. The notice of determination declining appellant's claim for benefits said:

You could have remained on the substitute list for the coming fall after your regular contract was over. You chose voluntarily to have your name removed. You are therefore ineligible between school terms.

At the hearing on September 19, 1979 before the Appeals Tribunal appellant testified that "I didn't want to substitute after working full-time for a year, I wanted to find a full-time position, whether in teaching or not." She didn't want to substitute teach "because it's not enough money and it's not steady." She had been paid $23 per day as a substitute during the 1977-1978 school year. Appellant testified that she was actively seeking work as a teacher and in other fields, i.e. , "personnel, public relations, or anything -- anything that would be comparable to the money I was making last year."

The Appeals Examiner reached the conclusion that since claimant's name had been placed on the substitute list for the fall term of 1979 by the School Board, even though she did not desire to substitute, "she had reasonable assurance of recall as that term is defined by the statute." The Board of Review of the Division of Employment Security affirmed the Appeals Tribunal. We conclude that it erred as a matter of law and reverse.

We disagree with the Attorney General's contention that Patrick v. Board of Review , 171 N.J. Super. 424 (App.Div. 1979), is controlling. There unemployment benefits were denied to a claimant who previously had been a substitute teacher, on either a long-term or day-to-day basis, during the 1977-1978 school year because she had received "reasonable assurance" that she would continue to be a day-to-day substitute during the 1978-1979 school year. Patrick is distinguishable simply because the claimant there never was a full-time teacher under ...


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