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Dessau v. Board of Review


September 21, 2007


On appeal from a Final Agency Decision of the Department of Labor, Division of Unemployment and Disability Insurance, Docket No. 114,075.

Per curiam.


Submitted September 10, 2007

Before Judges Cuff and Simonelli.

Claimant, Millicent V. Dessau, appeals from a final decision of the Board of Review affirming the Appeal Tribunal's determination that she was disqualified from receiving unemployment compensation benefits for six weeks under N.J.S.A. 43:21-5(b).

Dessau was employed as a cook for TGI Friday's (TGI) from February 1992 to April 18, 2006. Prior to April 18, 2006, she had been disciplined on numerous occasions and was subject to a "last chance agreement," which required her to follow all of TGI's procedures or be terminated. TGI terminated her on April 18, 2006, for preparing and distributing food to a co-worker without following proper procedures.

TGI's employees must pay for their own meals. TGI's food distribution policy requires that cooks first obtain a ticket from an employee before preparing and distributing food. A waiter or bartender must first ring in a ticket at a cash register and present it to a cook in the kitchen. Once an item is rung, it appears on a screen in the kitchen within view of the cooking staff. A ringing sound then alerts the staff. Absent a ticket, the cook is not authorized to prepare or distribute food to a co-worker. Dessau knew about TGI's food distribution policy. Nevertheless, on April 17, 2006, she prepared and distributed food to a co-worker without a ticket. TGI terminated her the next day.

Dessau filed a claim for unemployment benefits effective April 16, 2006. The Deputy Director found that she was not qualified for benefits for six weeks under N.J.S.A. 43:21-5(b) because she was discharged from her employment for misconduct connected with the work. Dessau appealed this determination to the Appeal Tribunal, which held a hearing on June 19, 2006. The Appeal Tribunal affirmed the Deputy Director's determination finding that Dessau "understood that it was her responsibility to have a food order ticket due to the standard of its purpose and importance" and that "neglecting to meet that standard does rise to the level of misconduct under the law." Dessau appealed to the Board. The Board of Review affirmed.

Our role in reviewing an agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). In challenging the agency's determination, a claimant carries a substantial burden of persuasion, and the determination by the agency carries a presumption of reasonableness. Gloucester County Welfare Bd. v. State Civil Serv. Comm'n, 93 N.J. 384, 390 (1983). We also accord substantial deference to the interpretation given by the agency to the statute it is charged with enforcing. Bd. of Educ. of Neptune v. Neptune Twp. Educ. Ass'n., 144 N.J. 16, 31 (1996). We will not reverse an agency decision unless it is arbitrary, capricious, or unreasonable, or not supported by substantial credible evidence in the record as whole. In re Distribution of Liquid Assets Upon Dissolution of the Union County Reg'l High Sch. Dist. No. 1, 168 N.J. 1, 10-11 (2001); R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999); In re Taylor, 158 N.J. 644, 656 (1999); Brady, supra, 152 N.J. at 210-11.

The scope of our review of an administration decision is "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Taylor, supra, 158 N.J. at 656 (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). Applying these principles, we affirm.

An employee can be disqualified from receiving unemployment benefits for six weeks for misconduct connected with work. N.J.S.A. 43:21-5(b). Employee misconduct has been defined as: an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

[Borowinski v. Bd. of Review, 346 N.J. Super. 242, 245 (App. Div. 2001) (quoting Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957)).]

Dessau was on a "last chance" status at the time of the incident that led to her termination. She was well aware that she would be terminated if she failed to follow all of TGI's procedures. She also was well aware of TGI's food distribution policy, which she admittedly violated. Her conduct clearly falls within the definition of misconduct.

The Board's determination is supported by substantial credible evidence in the record as a whole and is not arbitrary, capricious, or unreasonable.



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