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Joseph v. Board of Review


February 2, 2010


On appeal from a Final Decision of the Board of Review, Department of Labor, Docket No. 198,349.

Per curiam.


Submitted October 28, 2009

Before Judges Payne and Miniman.

Claimant, Clive E. Joseph, appeals from a final determination of the Board of Review that Joseph was disqualified from receipt of unemployment insurance benefits pursuant to N.J.S.A. 43:21-5(b) and N.J.A.C. 12:17-10.4 in the period from July 13, 2008 through August 23, 2008 as the result of misconduct connected with the work, consisting of excessive tardiness and other infractions.

Joseph was employed as a case manager by the New Jersey Association on Correction from October 17, 2005 to his discharge on July 18, 2008 after an incident on July 14 when he arrived at work nineteen minutes late. Following the denial of unemployment insurance benefits by a deputy claims examiner, Joseph appealed, and an Appeal Tribunal hearing took place at which Joseph testified on his own behalf and Gwendolyn Wilson-Ashby, the program manager for the New Jersey Association on Correction, testified for the employer.

Records and testimony submitted by Wilson-Ashby in connection with the matter indicate that Joseph was informed in a memorandum to staff dated January 24, 2007 that, if an employee were running late for work or a work-related appointment, the employee was to contact his or her supervisor and to inform the supervisor when arrival would occur. He and another employee were reminded of the need to inform their supervisors of anticipated tardiness in a further memorandum dated March 26, 2007. On July 11, 2007, Joseph missed a scheduled training presentation on HIV at Midstate Prison because he arrived at work forty-five minutes late and thus missed the transport arranged for the event. Joseph had not notified anyone of the problem or of the fact that he missed the presentation.

A further incident is reflected in a memorandum dated August 17, 2007. At that time, Joseph was reported to have arrived forty-five minutes late at an outreach program conducted at an entity named Elijah's Promise. Again, he had not informed his supervisor of his lateness, thereby giving her the mistaken impression that his arrival had been timely. A meeting between Joseph and his supervisor occurred, and Joseph was told that he would be written up for the incident.

On February 27, 2008, Joseph was suspended for a period of three days, followed by a ninety-day probationary period, after he failed, despite his promise to do so, to e-mail time-sensitive data to a co-worker, needed for a grant report that was due on the following morning and failed to call his project supervisor to inform her of the status of the data.

While on probation, Joseph was subject to periodic probationary period employee reports. A report dated March 27, 2008 did not mention timeliness as a problem, but indicated other deficiencies in Joseph's work. His performance was rated as needing improvement.

A further probationary period employee report, dated April 24, 2008 and signed by Joseph, listed Joseph's performance as unsatisfactory and stated that "Clive did not follow up w/email re: "board report that was due." The report stated further, "Clive did not send any ideas for ways to improve the office environment. Clive has also chronically failed to report to work on time and maintain a 30 minute lunch break" and that he "[had] not informed [his] supervisor of potential lateness in a timely fashion or upon arrival to work."

On May 13, 2008, Joseph's probationary performance received a further review. A report that Joseph refused to sign stated: "Clive has not consistently signed in/out for lunch. He has also failed to maintain a 1/2 hr. lunch." It stated additionally: "Clive continues to arrive to work late" and "Clive continually fails to notify this Supervisor when the potential for lateness is apparent" while recognizing that "on occasion" Joseph had informed his supervisor when he had arrived at work late.

A memo to Joseph dated June 4, 2008 stated:

On May 22, 2008, we discussed your habitual lateness and failure to notify Supervisor of potential lateness. We also talked about solutions such as: using your cell phone to call in when you realize that you are going to be late and leaving home earlier. As of today, you have not incorporated these suggestions into your daily habits and since our discussions on 5/22/08, you have arrived late to work every scheduled day. You have only called twice during this period and those calls were to inform your Supervisor of your lateness AFTER you have already arrived to work late.

As a consequence of the "minimal amount of effort" demonstrated to get to work on time, Joseph's probationary period was extended for an additional thirty days. Joseph was instructed that, during the extended period, a "significant improvement" in his attendance record was expected.

Nonetheless, in an evaluation dated July 14, 2008 that Joseph refused to sign, his conduct was again rated as unsatisfactory, and the following comments were given: "Clive does not keep commitments to attend scheduled program activities (Health Fair)." "Clive is inconsistent when calling supervisor to notify potential lateness" and "Clive continues to arrive at work and return from lunch late." Appended time clock records corroborate that conclusion. Joseph was terminated effective July 18, 2008 for failure to successfully complete his probationary period.

Joseph, whose work day started at the earliest at 10:00 a.m., claimed that he was late principally because he missed his bus. He testified: "I do take a bus to go to work every day. I mean, it's not [an] exact science to catching a bus to work." He stated additionally that, until late April or May 2008, he did not own a cell phone and therefore had difficulty in contacting his supervisor.

The record further reflects that the employer had an employee manual that discussed disciplinary infractions and the employer's disciplinary process. Tardiness was considered a "minor infraction" met in the first instance with a written warning, then with probation or a disciplinary suspension, and finally with termination.

In a written opinion following the hearing, the appeals examiner noted that N.J.A.C. 12:17-10.4 permits discharge or suspension for tardiness if it was:

1. Chronic or excessive and is repeated after verbal and/or written warnings from the employer, and

2. Without reasonable excuse, or could have been anticipated by the individual and he or she failed without justification to take necessary steps to notify the employer of the expected tardiness.

Finding the employer's testimony to have been credible as the result of the existence of corroborating evidence, the appeals examiner found:

The evidence demonstrates that the claimant was indeed tardy on [July 14, 2008]. The claimant's reason for his chronic tardiness is not viewed as a compelling reason. The claimant is responsible for getting to work on time with his own means of transportation in order to preserve his employment.

The claimant had a history of chronic tardiness problems after reviewing his prior warnings, suspension, probation, and extended probation. The claimant's reason for termination exhibits misconduct.

Accordingly, the appeals examiner found Joseph to be disqualified for benefits under N.J.S.A. 43:21-5(b) as of July 13, 2008 through August 23, 2008 "as the discharge was for misconduct connected with the work." On appeal, the Board of Review affirmed. The present appeal was then filed.

N.J.S.A. 43:21-5(b) provides:

An individual shall be disqualified for benefits:

(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period) as determined in each case.

The meaning of the phrase "misconduct connected with the work" has been addressed in case law, but not by the Unemployment Compensation Act itself. In Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957), we stated:

"Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be an act of wanton or willful disregard of the employer's interest, a deliberate violation of the employer's rules, a disregard of standards of behavior which the employer has the right to expect of his employee, or negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer." [Id. at 183 (quoting 48 Am. Jur., Social Security, Unemployment Compensation § 38 at 541 (1943)).]

"Misconduct" under the Act does not include "mere mistakes," "minor but casual or unintentional carelessness or negligence," or "failure of performance as a result of inability or incapacity, inadvertence in isolated instances." Beaunit, supra, 43 N.J. Super. at 182 (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941); Kempfer, Disqualifications for Voluntary Leaving & Misconduct, 55 Yale L.J. 147, 162-66 (1945)). See also Demech v. Bd. of Review, 167 N.J. Super. 35, 39 (App. Div. 1979) (an isolated, minor violation of an employer's rules may not qualify as "misconduct.") However, misconduct does include an employee's deliberate refusal to comply with the employer's reasonable work rules. Brodrick v. Bd. of Review, 133 N.J. Super. 30, 33 (App. Div. 1975).

On appeal from an administrative determination such as that at issue here, our scope of review is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We will not reverse an agency decision unless it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole. Ibid. After a careful review of the record in this matter, we are satisfied that substantial evidence supported the conclusion that Joseph was chronically late to work and that his habitual tardiness constituted misconduct in connection with that work. We note Joseph's argument that his conduct did not constitute "gross misconduct." However, statutory provisions governing gross misconduct in an unemployment benefits context are not applicable in this case.



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