On appeal from the Board of Review, Department of Labor, Docket No. 123,256.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Skillman and LeWinn.
Claudette Brooks (hereinafter claimant) appeals from the November 13, 2006, decision of the Board of Review (Board) affirming the Appeal Tribunal's determination, following a hearing, that she was temporarily ineligible for unemployment benefits pursuant to N.J.S.A. 43:21-5(b). That statute provides that an individual shall be disqualified for unemployment benefits "[f]or the week in which the individual has been suspended or discharged for misconduct connected with work, and for five weeks which immediately follow that week[.]" Because we conclude the record fails to establish the type of "misconduct" intended to trigger the statutory disqualification, we reverse the Board's decision.
Claimant was employed as a certified medication aide at Carteret Senior Living from August 2002 until she was terminated on July 14, 2006. She was responsible for administering medications to patients in conformance with controlling State guidelines. N.J.A.C. 8:36-11.5.
Beginning in March 2006, claimant was held responsible for a series of medication errors. On March 21, 2006, an eye dropper was found in the wrong patient's room, leading her supervisor "to believe that there was possibly a medication error made." On July 8, 2006, claimant failed to sign "alert bands" for eight residents. On July 13, 2006, claimant arrived late and began distributing medications, including narcotics, without doing a mandatory count of such medications; when a count was done, one Xanax tablet was found missing. All certified medication aides were suspended for three days as a result of this incident, and claimant was terminated the following day, for failure to follow mandatory procedures.
At the hearing before the Appeal Tribunal, claimant denied any of these incidents were willful violations of procedures on her part. She testified that sometimes the pressure of the work and meeting the needs of the residents led to inadvertent failures to make record notations or complete required paperwork on time.
The Appeal Tribunal's decision states:
The claimant's contention is that human errors were made or she was rushed to perform her job correctly. The employer has demonstrated that the claimant made too many mistakes in a position where 100% accuracy is mandatory. The claimant received proper training in all aspects of her job yet she was unable to perform her job correctly. Therefore, the claimant is disqualified for benefits under N.J.S.A. 43:21-5(b), as of 7/9/06 through 8/19/06 as the discharge was for misconduct connected with the work.
The Board thereafter found that claimant had a full and impartial hearing, and affirmed the Appeal Tribunal's decision "[o]n the basis of the record below[.]
N.J.S.A. 43:21-5(b) does not define the type of "misconduct" intended to trigger the mandated ineligibility period. Therefore, we must look to decisions of our courts for guidance. In Demech v. Bd. of Review, 167 N.J. Super. 35, 38-39 (App. Div. 1979), we held:
Misconduct is a term undefined in the statute. Judicial attempts to imbue the term with substantive meaning have, however, insisted upon the ingredients of willfulness, deliberateness and intention if an employee's act is to qualify as misconduct. Inadvertent or unintentional acts, or simple neglectful conduct not amounting to a wanton disregard of consequences, will not so qualify. (Citation omitted).
The implementing administrative regulation comports with this concept. N.J.A.C. 12:17-10.2(a) states: "For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard ...