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Salvagno v. Board of Review

October 23, 2008

ANTHONY J. SALVAGNO, JR., APPELLANT,
v.
BOARD OF REVIEW AND BOROUGH OF GLEN RIDGE, RESPONDENTS.



On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 146,482.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 7, 2008

Before Judges Wefing and Yannotti.

Anthony J. Salvagno, Jr. appeals from a final determination of the Board of Review (Board), which found that appellant was disqualified for unemployment benefits pursuant to N.J.S.A. 43:21-5(b) because he had been discharged for misconduct connected with the work. For the reasons that follow, the appeal will be dismissed.

Appellant was employed by the Borough of Glen Ridge as a full-time maintenance worker in its Department of Public Works. Appellant was terminated, as of March 2, 2007, because he failed to show up for work after he had been called and told to report for certain emergencies. On March 4, 2007, appellant filed a claim for unemployment benefits. The deputy claims examiner found appellant eligible for benefits and benefits were paid. The Borough appealed and a hearing was held by the Appeal Tribunal on May 23, 2007. Appellant appeared for the hearing with his attorney.

At the hearing, J. A. Weisenbach, Superintendent of Public Works for the Borough, testified that appellant was told when he was hired that he had to work when there is a snowfall or other emergency. Weisenbach said that on January 15, 2006, appellant was called on his cell phone, and a message was left, informing appellant that he should report to work to deal with icy conditions at the train station and certain "mass [transit] areas." Appellant did not report. The following day, Weisenbach told appellant that he has to answer his phone and come in for emergencies. Appellant said that he did not receive the call. Weisenbach gave appellant a verbal warning.

Weisenbach further testified that he called appellant at 5:30 a.m. on January 23, 2006, and left a voice mail message, instructing appellant to report to work to deal with a snow and ice emergency. Appellant did not report. Weisenbach asked appellant why he had not reported to work. Appellant said that he did not get the call.

Weisenbach testified the next incident occurred on February 12, 2006. Appellant was called at 12:00 a.m. and told to report, but he did not come in to work until 9:00 a.m., even though his regular work day began at 7:00 a.m. Weisenbach testified that he questioned appellant why he had not reported earlier and appellant said he did not receive the call. Weisenbach gave appellant a written warning.

The next incident occurred on February 14, 2007. Appellant was called at about 5:00 a.m. and a message was left directing appellant to report to work to deal with a snow and ice emergency. Weisenbach said that appellant did not show up for work at all that day. Appellant came to work the following day. According to Weisenbach, appellant "said nothing." Appellant received a written warning, informing him that disciplinary action would be taken if another similar incident occurred.

Weisenbach additionally testified that, on February 26, 2007, at approximately 4:00 a.m., appellant was called and a message was left, instructing appellant to report to work to deal with a snow emergency. Appellant did not report to work; however, appellant called later in the day and informed Weisenbach that he had injured his back on February 22nd lifting a bag full of newspapers.

Weisenbach said that appellant did not call to report his status on February 27th. He did not report to work, nor did he inform Weisenbach that he would not be in. Appellant sent a hand-written letter to Weisenbach stating that he hurt his back and he was going to go to his own doctor.

Appellant did not call or show up for work on February 28th. He returned to work on March 1, 2007, and worked all day. Appellant did not return the following day, which was the day that he was terminated.

Appellant conceded that he was required to respond to emergency calls. He testified, however, that he never received the calls on January 15, 2006, January 23, 2006, February 12, 2006, February 14, 2007, or February 26, 2007. He said that he was ...


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