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Garcia v. Bd. of Review and

Decided: November 15, 1983.

AURA L. GARCIA, APPELLANT,
v.
BD. OF REVIEW AND STATE OF NEW JERSEY, DIV. OF YOUTH AND FAMILY SERVICES, RESPONDENTS



On appeal from Board of Review, New Jersey Department of Labor and Industry, Bankr. 134-320-C.

Antell, Joelson and McElroy. The Opinion of the Court was delivered by Antell, P.J.A.D.

Antell

[191 NJSuper Page 604] This is an appeal from a determination by the Board of Review in the Division of Employment Security affirming the decision of the Appeal Tribunal which denied claimant, Aura Garcia, unemployment compensation benefits following the termination

of her employment with the New Jersey Department of Human Services, Division of Youth and Family Services (DYFS). The determination below rests upon the conclusion that claimant was disqualified for benefits because she left work voluntarily without good cause attributable to her work. N.J.S.A. 43:21-5(a). The termination of claimant's employment is related to her absences from work because of alleged illness and her failure to maintain communication with her employer. The question presented is whether her departure from employment was voluntary within the meaning of the statute.

According to the findings of the appeals examiner, claimant worked as a social worker for DYFS approximately 6 years through May 7, 1982. She submitted a doctor's note dated May 8, 1982 to the effect that claimant required rest at home for at least one week. Her supervisor testified that she called in to report her condition on May 12, 14, 17 and May 19, 1982, and, although the evidence was in conflict, the appeals examiner found as a fact that there were no further calls after May 19, 1982. The appeals examiner also found that claimant knew her employer wanted further medical documentation as to her condition.

On June 2, 1982 claimant's superior wrote claimant to advise that she was "considered resigned not in good standing from the employ of New Jersey Division of Youth and Family Services" based on Civil Service Rule 4:1-16.14. The civil service rule relied on provides that:

Any employee who is absent from duty for five consecutive business days without notice and approval of his superior of the reason for such absence, and the time he expects to return, or who fails to report for duty within five business days after the expiration of any authorized leave shall be held to have resigned not in good standing.

On June 10, 1982 claimant's superior wrote again, enclosing Civil Service Form 31-A which, claimant was told, she could use to "appeal your Resignation Not In Good Standing should you desire to do so." Claimant appealed her termination of employment to the departmental level without success. Another appeal

followed to the Civil Service Commission, which was dismissed because not timely filed, an action which is now before the Appellate Division for review in a separate appeal. The conclusion which lies at the heart of the determination before us was expressed by the Appeal Tribunal in the following language:

Although she [claimant] claims not to have wanted to quit she did not take action reasonably calculated to keeping her job.

The test applied by the Appeal Tribunal in the foregoing language was obviously drawn from that approved by the Supreme Court in DeLorenzo v. Board of Review, Div. of Employment Sec., 54 N.J. 361 (1969). In that case it was made clear that a failure to report for work because of illness not attributable to the work was not in itself a voluntary quit which disqualified the employee from benefits where he seeks to return to the job after the illness. Id. at 364. The test which the Supreme Court there held was the correct one to apply under the statute was then stated in the following language formulated by the Board of Review:

The Board now holds that when an employee becomes ill and does those things reasonably calculated to protect the employment and, notwithstanding that she is not reinstated, there is no voluntary leaving of work. In these matters involving separation from employment for health reasons, the Board now holds that the disqualification arises only upon a finding that the employee, in fact, decided to terminate the employment because the work duties are ...


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