On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 141,701.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Payne.
Claimant, Ralph Wynder, a long-distance truck driver, was discharged from his employment on December 15, 2006 as the result of his refusal to drive to Alabama and Texas and his conversion of company funds. At the time of his refusal, Wynder had been given $200, which the employer claimed was an expense check for the trip, which Wynder later cashed. The money was not returned to the employer. Upon application for unemployment benefits, the claims examiner, Appeal Tribunal and the Board of Review all found Wynder disqualified from receipt of benefits because they found that his discharge from employment resulted from conduct that constituted theft in the amount of at least $200, punishable as a fourth-degree crime, and that the discharge thus was for gross misconduct connected with his work. N.J.S.A. 43:21-5(b).
In his administrative appeals and here, Wynder claims that he could not take the job assignment both because he had a peremptory small claims trial date during the time he was expected to be on the road and because he, a diabetic, was not feeling good. Wynder additionally claims that the money supplied by the employer constituted an unrestricted cash advance that he could use "to buy a gift for his wife if he chose," and that the amount would be deducted from Wynder's future pay. Alternatively, he claims that he legitimately set off the expense money against wages owed to him by his employer.
At the hearing, the employer denied being told about the court date, and testified that upon calling Wynder to determine why the trip had not been undertaken, he was informed by Wynder that he was sick. The employer further testified that the $200 check had been left in the truck or given to Wynder on the Friday before the assignment was to commence as a cash advance for meals and other incidentals while traveling. The employer claimed that Wynder had improperly taken the check while refusing to accept the trucking assignment.
The Appeal Tribunal did not accept Wynder's explanation of his diversion of the funds, crediting instead the employer's statement that the funds were earmarked for the trip that Wynder refused to undertake. The determination of the Appeal Tribunal was affirmed in a final decision by the Board of Review.
N.J.S.A. 43:21-5(b) provides that a claimant is disqualified from receipt of benefits if he is discharged from employment for gross misconduct connected with the work because of the commission of an act punishable as a crime of the first, second, third or fourth degree under the "New Jersey Code of Criminal Justice," N.J.S.2C:1-1 et seq.
The statute, by its terms, provides that, to be disqualified from receipt of benefits, a claimant need not be prosecuted for criminal conduct. The fact that the conduct constitutes a chargeable offense of at least the fourth degree is sufficient. Further, the commission of the act need be proven only by a preponderance of the evidence. In re Appeal of John E. Darcy, 114 N.J. Super. 454, 458 (App. Div. 1971). The theft of money in the amount of at least $200 is a crime of the fourth degree. See N.J.S.A. 2C:20-2b(3).
In this case, the Appeal Tribunal found that the cause of Wynder's discharge was his conversion of the $200 given to him by his employer as a travel advance for a trip he refused to make and, as the theft was punishable as a crime of at least the fourth degree, it constituted gross misconduct connected with the work, requiring disqualification for benefits pursuant to N.J.S.A. 43:21-5(b). We find the Appeal Tribunal's determination, as affirmed by the Board of Review, to have been supported by substantial evidence in the record, Carter v. Twp. of Bordentown, 191 N.J. 474, 482 (2007); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997), and the disqualification to have been properly imposed as a matter of law. Connell v. Bd. of Review, 216 N.J. Super. 403 (App. Div. 1987).
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