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Basile v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 1, 2007

DIANE BASILE, APPELLANT,
v.
BOARD OF REVIEW AND ALAN'S FABULOUS FLORALS, L.L.C., RESPONDENTS.

On appeal from the Board of Review, Department of Labor, Docket No. 94,651.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 10, 2007

Before Judges Cuff and Simonelli.

Claimant, Diane Basile, 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 under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to the work.

On July 7, 2005, Greg Glassberg, owner of Alan's Fabulous Florals, L.L.C., hired Basile to work as a floral designer. The parties disputed the terms of Basile's hire. Glassberg contends that he hired Basile to predominantly work on weekends. Basile contends that she was not hired to work every weekend but agreed to do so temporarily as a favor to Glassberg. Basile worked every weekend, except one, from July 7, 2005 to October 23, 2005. Sometime in September 2005, she notified Glassberg that she no longer wanted to work weekends but would continue to do so until he found a replacement. Glassberg found a replacement and advised Basile not to return to work.

Basile filed a claim for unemployment compensation benefits. A deputy claims examiner determined that she was disqualified from receiving unemployment benefits because she left work voluntarily without good cause attributable to the work. Basile appealed. The Appeal Tribunal determined that she was eligible for benefits without disqualification. Glassberg appealed. The Board of Review remanded the matter for additional testimony.

The Appeal Tribunal held a hearing on February 24, 2006. At the hearing, Basile admitted the following: (1) when she met with Glassberg in response to a want ad, he asked her what days she could work, and she said she was available to work on any day because she was free and could work Saturdays and Sundays; (2) Glassberg stated that he really needed help on the weekends; and (3) she worked every weekend during the duration of her employment. She also admitted that at some point in September, she did not want to work Saturdays because she was not having fun anymore and wanted to spend time with her husband.

The Appeal Tribunal determined that Basile was disqualified from receiving unemployment benefits pursuant to N.J.S.A. 43:21-5(a). It found Glassberg's testimony more credible and persuasive than Basile's regarding the terms of hire and her obligation to work on weekends. Once Basile notified Glassberg that she no longer wanted to work weekends, he hired a replacement. Thus, the Appeal Tribunal concluded that Basile's reason for leaving her job was a personal reason not attributable to the work.

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 strong 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 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 who leaves a job voluntarily without good cause attributable to the work is statutorily disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a). Causes personal to an employee and not attributable to the work come within the disqualification of the statute. White v. Bd. of Review, 146 N.J. Super. 268, 270 (App. Div. 1977).

Giving due regard to the opportunity of the Appeal Tribunal to judge Basile's and Glassberg's credibility, we conclude that there was sufficient, competent and credible evidence in the record that for personal reasons, Basile no longer wanted to work the days for which she had been hired. Because she left her job voluntarily, without good cause attributable to the work, she is statutorily disqualified from receiving unemployment benefits.

Affirmed.

20071001

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