On appeal from a Final Decision of the Board of Review, Department of Labor, 26,961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
Before Judges Parrillo and Sabatino.
Claimant, Daniel Gonzalez, appeals a final agency decision of the Board of Review ("the Board") issued on October 6, 2006.
The Board's decision upheld an Appeals Tribunal's ruling that disqualified Gonzalez from receiving six weeks of unemployment benefits, on the grounds that Gonzalez had been discharged from his employment with Goodway Car Wash, Inc. ("Goodway") for misconduct due to unreported absences. N.J.S.A. 43:21-5(b). We affirm.
At the times relevant to this matter, Michael Buonopane, the owner of Goodway, operated several car wash and oil change establishments in New Jersey, including a car wash on Route 9 in Howell Township. Gonzalez worked for Goodway from 1999 through January 2004. At the time he left his employment with Goodway, Gonzalez was the location manager of the Route 9 facility.
In 2003 Gonzalez suffered a work-related injury. He applied for workers' compensation, but was found ineligible for such benefits when it was discovered that Goodway had failed to withhold Social Security and other required payroll deductions from Gonzalez's paychecks. Gonzalez complained to Goodway's management, asserting that he would leave the company if the payroll deduction problem was not rectified. Gonzalez was also dissatisfied with Goodway's handling of his health insurance benefits. When Goodway failed to take corrective action, Gonzalez provided notice on January 7, 2004 to Goodway's human resource manager, Eric Laws, that he intended to resign in thirty days.*fn1
According to the testimony of Laws, presented by Goodway before the hearing examiner, Gonzalez failed to report to work on January 15, 2004 and again on January 18, 2004, without authorization. Laws testified that company policy required employees to notify him that they would be absent on a given day, even on days of inclement weather. Laws also noted that there would typically be other tasks for employees to perform when the weather was poor. Laws further stated that Gonzalez would have been paid for reporting to work, even if his supervisor decided to send him home early.
After Gonzalez failed to report or call in on January 15, Laws admonished him concerning his need to comply with this policy. According to Laws, he specifically advised Gonzalez that this was his "last chance." Despite this warning, Gonzalez again was absent without Laws's authorization on January 18. Consequently, Laws advised Gonzalez the following day, January 19, that he was discharged.
Gonzalez presented a contrary version of his absences. He acknowledged that he did not work on January 15 because it had snowed. Although his testimony was inconsistent, Gonzalez ultimately asserted that he had tried to call Laws that day but that Laws did not answer his phone. With respect to January 18, Gonzalez stated that he did not work, again because of inclement weather. He claimed that he tried to reach Laws without success. However, Gonzalez did not document the calls at the hearing with corroborating telephone bills.
Gonzalez also offered testimony from the company cashier, who stated that, by her observations, he did not "continually show up late" for work. However, the cashier could not recall whether or not Gonzalez had ever failed to report on time. The cashier also did not testify about Gonzalez's specific absences of January 15 and 18.
Laws denied receiving any calls or messages from Gonzalez on the 15th or the 18th. The hearing examiner credited his testimony, recognizing its "consistency and forthright" nature. By comparison, the hearing examiner observed that Gonzalez "was contradictory in a number of instances in his testimony," including his account of the events of January 15. Given the hearing officer's credibility findings, the Appeal Tribunal concluded that Gonzalez had engaged in misconduct connected with his work due to his failures to report, and that Gonzalez consequently was disqualified from receiving unemployment benefits for the week of his unauthorized absences, and the five weeks immediately thereafter. See N.J.S.A. 43:21-5(b). As a separate item, the Appeal Tribunal concluded that the problems with Gonzalez's health benefits and payroll deductions were not severe enough to amount to good cause to resign, thereby disentitling Gonzalez to unemployment benefits even after the initial six-week disqualification period ran. See N.J.S.A. 43:21-5(a).
Upon reviewing this matter, the Board adopted the Appeal Tribunal's finding that Gonzalez's two unapproved absences warranted a six-week benefits disqualification under N.J.S.A. 43:21-5(b). However, the Board reversed the tribunal's determination that, under N.J.S.A. 43:21-5(a), Gonzalez lacked good cause to resign due to the company's payroll-related problems. The effect of the Board's decision was to delay for six weeks Gonzalez's receipt of the presumptive twenty-six weeks of ...