For dismissal -- Chief Justice Wilentz, and Justices Clifford, Handler and O'Hern. For reversal -- Justices Schreiber, Pollock and Garibaldi. O'Hern, J., concurring in the result. O'Hern, J., concurring. Garibaldi, J., dissenting. Justice Schreiber and Justice Pollock join in this dissent.
This matter having been duly considered and the Court having determined that certification was improvidently granted; 96 N.J. 314.
It is ORDERED that the within appeal be and hereby is dismissed.
O'HERN, J., concurring in the result.
I concur in the Court's order vacating our grant of certification. 96 N.J. 314. I add a few observations in light of the dissent to that order.
We granted certification to review what petitioner described as a "significant issue of statewide proportion because of its pervasive effect on every school district within the State." The petitioner invitingly framed the issue, as do our dissenting members, in terms of whether a teacher who quits a teaching job to go to college full-time is eligible for unemployment benefits. The argument runs that such a leaving is a voluntary quit without cause attributable to work, a disqualification under N.J.S.A. 43:21-5(a). I agree that this is an interesting question provoking consideration of whether society is better served by encouraging individuals to better themselves through self-education
or by forcing them to remain locked in the hours of employment first chosen.
The problem is that the facts of this case do not present that question. Fox never had a definite job, either as a teacher or substitute teacher, from which to quit. In the fall of 1981, Fox was a full-time student, working his way through college by working nights at Alexander's Department Store, making about $5,000 a year. To supplement his income, he offered to work as a "call in" substitute teacher with the Woodbridge Township Board of Education (Woodbridge Board). During the entire fall semester, the Woodbridge Board called him in only twice. He had told the Board from the start that he could work only on Fridays during his first semester and during vacations.
When Alexander's had to lay Fox off in the recession of January 1982, Fox looked everywhere for work. He sounds like the sort of person we are always told to emulate. His record showed that he had personally run down over twenty leads for jobs on nights and weekends as a liquor store clerk, cashier, gas station attendant, waiter, bartender, and restaurant counterman. He found no work. While Fox's application was pending, the Woodbridge Board, on the advice of its counsel, called Fox's home to offer substitute work on three other days when they knew that he was unavailable. Fox's mother explained to them that he was attending college.
The Appeal Tribunal concluded that because Fox did not have a "definite job" with appellant from which to resign, he was not disqualified for benefits under N.J.S.A. 43:21-5(a). The dissent cites Patrick v. Board of Review, 171 N.J. Super. 424 (1979), in an attempt to support the premise that part-time substitute teaching is a definite job. However, the Appellate Division opinion in that case affirmed a Board of Review determination that a combination long-term and day-to-day substitute, who had "reasonable assurance of employment" during the following school year, could not collect unemployment compensation during the school's summer recess. Id. at 426. See also Sulat
v. Board of Review, 176 N.J. Super. 584 (1980) (full-time teacher not ineligible for unemployment benefits when she was terminated and placed on a substitute list).
That is all that there is to this case. By stating the question incorrectly, the dissent has cast doubt upon the integrity of the decision below. But, in reality, it remains an essentially factual dispute hardly requiring Supreme Court review. In Self v. Board of Review, 91 N.J. 453 (1982), the Court yielded broad administrative discretion to the Appeal Tribunal in its interpretation of a voluntary quit. ...