On appeal from the Board of Review, Department of Labor, Docket No. 73,123.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 8, 2006
Before Judges Axelrad and R. B. Coleman.
Claimant, George R. Gonzalez, appeals from the Final Decision of the Board of Review, issued on June 28, 2005. In that decision, the Board expressed its agreement with and affirmance of the May 24, 2005 decision of the Appeal Tribunal. The Appeal Tribunal determined that claimant is not entitled to unemployment benefits for the period October 5 through November 30, 2002, and is liable to refund $4,275, the sum representing benefits he received during that period. On two other issues, the Appeal Tribunal ruled in favor of claimant. It modified the determination of the Director of the Division of Unemployment Insurance (the Director) concluding that claimant is not liable to refund $475 he received as benefits for the week ending July 20, 2002, and it reversed the Director's order disqualifying claimant from receiving benefits for one year, pursuant to N.J.S.A. 43:21-5(g)(1), and it vacated a fine in the amount of $1,187.50. We affirm.
Claimant worked as a broker with Kirlin Securities until he was terminated on June 13, 2002. Thereafter, he filed a claim for unemployment benefits and received $475 per week from June 16, 2002, until approximately December 1, 2002. He was hired by First Financial*fn1 of Phoenix, Arizona, as a full-time broker, on a commission basis on September 30, 2002, however, during the period of September 30 through October 31, 2002, he did not receive any commissions or compensation. On December 2, 2002, claimant received commissions in the amount of $6,810 for the month of November 2002.
The Appeal Tribunal found that earnings for the week of July 20, 2002, were erroneously attributed to claimant and that he was not liable for refund for that period. In finding that claimant was not disqualified from receiving benefits for a period of one year, the tribunal determined that it was reasonable for claimant to have believed he was eligible for benefits because he was not paid for his services until two months after he rendered them. Therefore, claimant had made no attempt to misrepresent or to defraud so as to warrant disqualification. N.J.S.A. 43:21-5(g)(1). Nor was claimant subject to a fine. N.J.S.A. 43:21-16(a).
On the other hand, the Appeal Tribunal found that even though claimant did not receive payment during the week ending October 5 through November 30, 2002, he was still employed on a full-time basis and regardless of whether or not he received any compensation during that period, he was not eligible to receive benefits. Consequently, he was held liable for refund of the $4,275 he received for the period. His appeal concerns that adverse determination.
At the hearing conducted by telephone on May 18, 2005, claimant testified he began work with First Financial in Arizona in mid-October but received no commission that month. He said he worked the month of November trying to generate money so he could get paid in December. He acknowledged he received unemployment benefits for the month of November; he testified he informed the New Jersey Division of Unemployment Insurance right away after he received the December commission check at which time benefits terminated. As he understood the situation, his earnings began after his unemployment benefit checks ended.
The Human Resources Specialist from Sunwest, First Financial's payroll company, testified that their records showed claimant's first day of work as September 26, 2002. The commission check was listed for the week ending November 27, 2002. Neither she nor claimant had any specifics as to the breakdown of his commission check and claimant could not provide any specifics about "when" in November he earned the commissions. Neither the Human Resources Specialist nor claimant raised any question as to the viability of the September 26 hiring date. Neither said anything about claimant needing clearance from the State of New Jersey and the State of Arizona or that there were regulatory restrictions on the transfer of clients from claimant's prior firm or that he was unable physically to work to generate commissions until client transfers were complete. Claimant now contends he was really not able to begin working until November 2002.
Claimant attempts to supplement the record with a letter from the Human Resources Specialist and an email from his employer's compliance supervisor to establish that he received Arizona approval on November 19 and New Jersey approval on November 21. Presumably, then, his position is that he should only owe a refund for the weeks of November 18 and 25. Those submissions were never presented in the proceedings before the New Jersey Division of Unemployment Insurance and are, therefore, not cognizable by this court. Claimant still did not supply a breakdown of his commission check, and he never testified or certified exactly when in November he "began working" or what he did during that time.
"To obtain benefits an employee must be: (1) eligible and (2) not disqualified." Amico v. Bd. of Review, 49 N.J. 159, 172 (1967). Eligibility requirements include the ability to work, being available to work, and actively seeking work. N.J.S.A. 43:21-4(c)(1). Here, as the Appeal Tribunal found, claimant was employed full time with First Financial, working on a commission basis. Because claimant was not available to work elsewhere, he was ineligible for benefits. That he did not receive compensation from his employer during the period is not dispositive.
Claimant's case is distinguishable from that of the salesman working on commission in Borromeo v. Bd. of Review, 196 N.J. Super. 576 (App. Div. 1984), where this court held that full-time work did not prevent the claimant from entitlement to unemployment benefits. There, the claimant stated he was using his current job, where he earned virtually nothing, as a platform to find more appropriate work and that he was "free to leave [his job] at any time." Id. at 579. By comparison, claimant had started his new job and it is not reasonable to infer that he was using such a position to find more gainful employment. We are satisfied that the Appeal Tribunal correctly determined that claimant was not eligible for benefits and that he is therefore liable for refund of the amount by which he was overpaid.
We will not upset the determination of an administrative agency absent a showing that it was arbitrary, capricious or unreasonable, that it lacked fair support in the evidence, or that it violated legislative policies. In re Musick, 143 N.J. 206, 216 (1996); Campbell v. Dep't of Civil Service, 39 N.J. 556, 562 (1963). We may not vacate an agency's decision because of doubts as to its wisdom or because the record may support more than one result. See generally, Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); De Vitis v. New Jersey Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985). An appellate court will not substitute its judgment for that of an administrative agency unless the agency's determination is "so ...