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Shuster v. Board of Review

October 18, 2007


On appeal from a Final Decision of the Board of Review, Department of Labor, 115,284. Margolis Edelstein, attorneys for appellant (Ralph R. Smith, 3rd, on the brief).

The opinion of the court was delivered by: Lintner, P.J.A.D.



Submitted September 24, 2007

Before Judges Lintner, Parrillo and Sabatino.

Dr. Rachel Shuster, a veterinarian employed by Keenan McAlister Equine, Inc. (employer), appeals a final decision of the Board of Review (Board). The Board accepted the findings and opinion of the Appeal Tribunal and disqualified Shuster from receiving unemployment compensation benefits. Shuster appeals and we reverse.

Shuster left her employment on May 3, 2006, and filed for benefits with the Division of Unemployment Insurance (Division) on May 30, 2006. A deputy with the Division found that she was eligible for benefits. The employer appealed the deputy's determination. Following a telephone hearing that took place on June 27 and July 25, 2006, the Appeal Tribunal found that petitioner was disqualified for benefits under N.J.S.A. 43:21-5(a) because she left work voluntarily without good cause attributable to such work.

We recite the relevant facts. Shuster was employed as an equine veterinarian, under contract from July 17, 2000, through May 3, 2006. On January 6, 2006, Dr. Daniel Keenan, one of the employer's principals, advised Shuster that he did not think her employment was working out and she was not a candidate for partner. Although he did not discuss it at the time, Keenan had received complaints from various clients telling him that they did not want Shuster to treat their horses. Keenan advised Shuster that she should start looking for another job and he would be looking for a new associate. Keenan testified that he did not terminate Shuster at that time but told her that she could continue working in the practice and he would give her the contractually required sixty-day notice when a new associate was hired.

On March 2, 2006, Shuster tendered a letter of resignation, giving the contractual sixty-day notice that she would be leaving on May 3, 3006. Shuster indicated that Keenan offered her the chance to resign so that her professional reputation would remain intact. Shuster testified that after the January meeting she came under tension on the job. However, when asked what occurred between January 6 and the submission of her resignation letter that caused tension at work, she was unable to provide a specific example. She responded, "[t]he bottom line was I was told to leave . . . on January 6th and that I needed to look for other employment or whatever, but I needed to leave, and so that's what I did." Although she viewed the January meeting as a termination, she admitted that Keenan never told her that she was being "fired." Shuster's replacement began working on April 22, 2006.

In reaching its decision, the Appeal Tribunal relied on N.J.A.C. 12:17-9.5, entitled, "Voluntary Leaving Work Prior to Imminent Layoff or Discharge," to conclude that Shuster's discharge was not imminent because it was beyond sixty days from the time she met with Keenan in January. The Tribunal reasoned that because her potential discharge was not imminent, her leaving work because she was eventually going to be discharged and needed to look for new employment was not a sufficient cause for leaving the ranks of the employed to join the ranks of the unemployed to qualify for benefits.

On appeal, Shuster contends that she tendered her resignation with good cause attributed to her work. She argues that she would not have resigned had Keenan not advised her that her employment was not working out and that he was going to seek a replacement. She maintains that the fact that her replacement was hired only a few weeks prior to her departure date supports the conclusion that she resigned based upon a reasonable belief that her last date of employment was imminent.

N.J.S.A. 43:21-5(a) provides in pertinent part:

An individual shall be disqualified for benefits: (a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

Although the statute does not define "good cause," we have observed, where the reason is "'sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed,'" good cause exists. Doering v. Bd. of Review, 203 N.J. Super. 241, 245-46 (App. Div. 1985) (quoting Associated Util. Servs., Inc. v. Bd. of Review, 131 N.J. Super. 584, 586 (App. Div. 1974)). "'The decision to leave employment must be compelled by real, substantial and reasonable circumstances . . . attributable to the work.'" Fernandez v. Bd. of ...

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