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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 ...

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