On certification to the Superior Court, Appellate Division, whose opinion is reported at 182 N.J. Super. 361 (1981) (A-12 Self v. Board of Review). On certification to the Superior Court, Appellate Division (A-13 Patterson v. Board of Review).
For reversal -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler and Pollock. For affirmance -- Justice O'Hern. The opinion of the Court was delivered by Pollock, J. O'Hern, J., dissenting.
[91 NJ Page 454] The basic question on these two appeals is whether employees who are unable to get to work because of lack of transportation have "left work voluntarily without good cause attributable to such work." N.J.S.A. 43:21-5(a). If so, they are not eligible for unemployment compensation. The Board of Review determined that the inability of the employees to obtain transportation was a personal reason for leaving work. Consequently, the Board disqualified them from unemployment compensation benefits. In both cases, the Appellate Division reversed the Board of Review. The opinion of the Appellate Division in Self v. Board of Review is reported at 182 N.J. Super. 361 (1981); the Patterson decision is unreported. We reverse the judgments of the
Appellate Division in both cases, thereby reinstating the decisions of the Board of Review.
Claimants, Charlotte L. Patterson and Annie Marie Self, were employees of Buildings Services Corporation and worked at a corporate facility in Skillman, New Jersey. Patterson was a supervisor and Self was a maintenance worker on the 4:00 p.m. to 12:00 a.m. shift. Self performed cleaning and custodial work and Patterson was a "lead person" whose duties included starting the shift of workers. Both claimants acknowledged that their ability to provide transportation from their homes in Trenton to Skillman, a distance of about 20 miles, was a condition of their employment. Public transportation between Trenton and Skillman was unavailable. Patterson drove Self to work in Patterson's car until the car became inoperable. Thereafter they rode with another employee until December 18, 1979, when that employee quit.
On that date, Patterson and Self called their supervisor, Michael Klank, to say they could not get to work. They called again on December 19 to report their continuing inability to obtain transportation. Thereupon, Klank told them he would have to replace them. On his "termination report," Klank noted that both employees had "quit" and that the reason was "no transportation." That notation is consistent with Patterson's testimony that transportation was available "[u]ntil I got ready to quit in December, December 18."
Although Patterson and Self testified that Klank told them they could go to the Unemployment Office, Klank denied making that statement. Previously Self had left employment with Building Services because of transportation problems, and she had been rehired only after assuring her employer that she had transportation to and from work. Although Building Services was willing to rehire them if they could obtain transportation, claimants acknowledged that transportation was not available.
Neither requested a leave of absence, and both have found other employment.
Patterson and Self filed claims for unemployment compensation benefits, but the Deputy of the Division of Employment and Disability Insurance rejected both claims. On appeal within the Division, the Appeal Tribunal conducted a hearing and affirmed the denial of benefits. Similarly, the Board of Review affirmed the decision of the Appeal Tribunal. The Board found that
[t]here is no dispute that both claimants were without transportation to work, hence, it is clear that they could not meet the conditions of employment. No projection was made that their absence from work would be of a short duration. The fact that the employer advised them that they would be replaced if they could not report for work does not alter the fact that the claimants, by their lack of transportation to work, initiated the chain of events which led to their separation.
Underlying that decision was the rule announced by the Appellate Division twenty years ago: "An employee's problem of commuting to and from his work may be considered a good personal reason for leaving his employment, but it is not ordinarily to be considered a cause that is connected with or attributable to the work. Commuting is usually considered a problem of the ...