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Guinto v. Board of Review

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 6, 2010

GARY GUINTO, JR., APPELLANT,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR AND WORKFORCE DEVELOPMENT AND ABERCROMBIE & FITCH STORES, INC., RESPONDENTS.

On appeal from a Final Decision of the Board of Review, Department of Labor and Workforce Development, Docket No. 160,513.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 2, 2009

Before Judges Payne and Waugh.

Claimant, Gary Guinto, filed a claim for unemployment compensation benefits on November 26, 2006. According to Guinto, he was terminated from his employment as an assistant store manager by his employer, Abercrombie & Fitch, as the result of evidence of excessive thefts at the store where Guinto worked. In contrast, the employer claimed that, after informing Guinto that he was to be placed on two weeks of paid leave pending investigation of the thefts, Guinto resigned.

On August 9, 2007, a determination by a deputy claims examiner that Guinto was disqualified for benefits was allegedly mailed to him, along with a request for refund of benefits paid in the amount of $4,326. On August 23, 2007, Guinto appealed, and a hearing in the matter was held before an Appeal Tribunal on October 29, 2007. On the day of the hearing, the Appeal Tribunal issued an opinion dismissing Guinto's appeal for late filing. See N.J.S.A. 43:21-6(c) (establishing a ten-day appeal period). However, in a decision by the Board of Review mailed on December 18, 2007, the Board reversed the Appeal Tribunal's decision, determining on the basis of Guinto's testimony before the Tribunal that good cause for the late filing existed. The matter was thus remanded to the Appeal Tribunal for a determination whether Guinto voluntarily left his employment, thereby disqualifying him for benefits.

In a further decision by the Appeal Tribunal, mailed on January 24, 2008, the Tribunal found that Guinto had left work voluntarily without good cause attributable to the work and was disqualified for benefits as of October 29, 2007, pursuant to N.J.S.A. 43:21-5(a). Additionally, the Tribunal found that Guinto was liable for a refund in the amount of $4,326 for the weeks ending December 2, 2006 through March 10, 2007, in accordance with N.J.S.A. 43:21-16(d).

Guinto appealed from the Appeal Tribunal's determinations on February 21, 2008. However, as we previously stated, the Board of Review dismissed the appeal as untimely. The Board's decision stated that good cause had not been shown for late filing. This appeal followed.

The Supreme Court established, in Rivera v. Board of Review, 127 N.J. 578 (1992), that in certain circumstances, a "good cause" exception to the ten-day limitation on filing appeals provided by N.J.S.A. 43:21-6(c) should be employed. Subsequently, the Board promulgated a regulation establishing the factors to be considered in determining good cause. See N.J.A.C. 12:20-4.1(h). That regulation states:

A late appeal shall be considered on its merits if it is determined that the appeal was delayed for good cause. Good cause exists in circumstances where it is shown that:

1. The delay in filing the appeal was due to circumstances beyond the control of the appellant; or

2. The appellant delayed filing the appeal for circumstances which could not have been reasonably foreseen or prevented.

In the present appeal, Guinto offers a reason for the late filing of his appeal that does not appear to have been considered by the Board.*fn1 We therefore remand the matter to the Board for reconsideration of the issue of good cause, requiring that any supplementation by Guinto of his statement of reasons be presented to the Board within ten days of his receipt of this opinion.

Remanded. Jurisdiction is not retained.


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