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Fairley v. Board of Review

June 19, 2008

JACQUELYN D. FAIRLEY, APPELLANT,
v.
BOARD OF REVIEW, AND WHITE CASTLE SYSTEMS, INC., RESPONDENT.



On appeal from the Board of Review, Department of Labor, Docket No. 141,166.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 9, 2008

Before Judges R. B. Coleman and Lyons.

Claimant Jacquelyn D. Fairley appeals pro se from a May 2, 2007 Final Decision of the Board of Review (the Board), reversing an Appeal Tribunal decision that found Fairley eligible for unemployment benefits. After reviewing the record in light of applicable law and the arguments advanced on appeal, we affirm the Final Decision of the Board.

The issue before the Board, and now before this court, is whether Fairley voluntarily left work without good cause attributable to the work, thereby disqualifying her from receiving unemployment benefits. See N.J.S.A. 43:21-5(a). Fairley worked part-time for White Castle System Inc. (White Castle) from July 20, 2006 to December 31, 2006. When her employment with White Castle ceased, Fairley applied for unemployment benefits. On January 30, 2007, a Division of Unemployment Insurance Deputy found that Fairley was eligible for unemployment benefits, stating:

YOU VOLUNTARILY QUIT 12/31/06 PRIOR TO GIVING THE REQUIRED TWO (2) WEEK NOTIFICATION BECAUSE YOU DISAGREED WITH THE HOURS. THE HOURS [WERE] NOT THE SAME HOURS AS AGREED AT THE TIME OF HIRE. THEREFORE, YOU VOLUNTARILY QUIT WITH GOOD CAUSE. YOU ARE ELIGIBLE FOR BENEFITS.

On February 7, 2007, White Castle appealed the Deputy's decision, alleging that Fairley voluntarily quit without good cause and that she failed to show up for her scheduled shift.

The matter proceeded to a hearing via telephone before an Appeals Examiner on March 5, 2007. The following testimony was elicited at the hearing.

Fairley testified that "I was under the impression that I'd be working from 11:00 [p.m.] to 7:00 [a.m.] but it never was 11:00 to 7:00." She stated that her schedule was never consistent. Questioning by the Appeals Examiner elicited the following:

Q: Well did [your boss] tell you that [your schedule] was always going to be those hours or did she tell you that it could vary?

A: No she didn't say that it could vary she just said that I probably won't be there until 7:00 but[.]

Q: Did she tell you that you would always be starting at 11:00 p.m. at night?

A: No, no, no.

Q: Okay so she never guaranteed that you would be working those hours?

A:No it was never explained to me put [sic] it like that. Claimant's testimony regarding her reason for leaving was as follows:

Q:And what did you tell [your boss] [as] to why you were not coming back to work?

A:I told her I couldn't come back because the job was causing me problems with my leg I was not going to be able to do it anymore, I tried to stick in there as long as I could but my legs would not permit it. I was on my legs too much and before that a couple of times I had went to her when my schedule was made and I would tell her [it] was not good for me[;] I would not be able to work these hours because of my children. I had young children at home so the issue about the hours.

Q: So what did she say?

A: She would change it she would say well when you could come in [] when you ...


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