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Kruk v. Board of Review

August 27, 2010


On appeal from the Board of Review, Department of Labor, Docket No. 195,946.

Per curiam.


Submitted August 17, 2010

Before Judges Lihotz and Baxter.

Claimant Arthur Kruk appeals from a final decision of the Board of Review (Board) finding him disqualified from unemployment compensation benefits because he left work voluntarily without good cause attributable to the work, as provided in N.J.S.A 43:21-5(a). We affirm.

Claimant was hired by Gevity HR, d/b/a Penn Capital Management (Penn), as an equity trader on January 27, 2008 where he worked until June 11, 2008. Penn's managing partner Scott Schumacher, Chief Financial Officer Gerald McBride and Senior Trader Scott Cohen testified for the employer. Schumacher testified that, sometime in May 2008, claimant came to his office and "basically gave [] two weeks notice" that he was leaving to assist his parents in the management and operation of their business which was expanding. Claimant's parents owned one hotel in Wildwood and were purchasing a second. Claimant suggested he would "help out a little longer to get [Penn] through the transition." Schumacher began advertising for claimant's replacement. Thereafter, claimant utilized his accumulated "personal time off," exhausting his benefits by June 8, 2008. He did not report to work on June 9, 10 or 11. On June 11, Cohen left a message for claimant that he had exhausted all his compensatory time and that his employment had ended. Claimant admits he told Schumacher his parents were acquiring a second hotel and his assistance in the business was necessary, but denies giving two weeks notice of his intent to terminate his employment.

Claimant applied for unemployment benefits on July 6, 2008. In separate, inconsistent August 4, 2008 determinations, the same Deputy Director for the Division of Unemployment Insurance determined claimant was (1) qualified for benefits as his discharge was for excessive absenteeism, however, his conduct did not qualify as misconduct precluding receipt of unemployment benefits, pursuant to N.J.S.A. 43:21-5(b); and (2) disqualified from receiving benefits because he had voluntarily left his job to accept other employment on July 27, 2008. N.J.S.A 43:21-5(a). Claimant sent a letter to the Appeals Tribunal questioning these inconsistent determinations, which was considered a timely appeal.

Following a telephonic hearing held on October 7, 2008, the Appeals Tribunal concluded claimant had voluntarily resigned his employment and thus N.J.S.A. 43:21-5(a) imposed a disqualification for benefits. Claimant appealed, challenging the factual determinations of the appeals examiner. The Board affirmed the Tribunal's determination and this appeal ensued.

Our scope of review of an agency decision is limited. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). In challenging the agency's conclusion, claimant carries a substantial burden of persuasion as the administrative agency's determination carries a presumption of correctness. Gloucester County Welfare Bd. v. Civil Serv. Comm'n, 93 N.J. 384, 390-91 (1983). Whether an employee should be denied unemployment compensation benefits is based on the circumstances of each individual case. Self v. Bd. of Review, 91 N.J. 453, 459-60. (1982).

"We are obliged to defer to the Board when its factual findings are based on sufficient credible evidence in the record." Lourdes Med. Ctr. v. Bd. of Review, 197 N.J. 339, 367 (2009) (internal quotations and citations omitted). We overturn an agency determination only if it is found to be arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy. Gloucester County Welfare Bd., supra, 93 N.J. at 391; Campbell, supra, 39 N.J. at 562. We also accord substantial deference to the agency's interpretation of the statute it is charged with enforcing. Bd. of Educ. v. Neptune Twp. Educ. Ass'n, 144 N.J. 16, 31 (1996).

The purpose of New Jersey's Unemployment Compensation Act (Act), N.J.S.A. 43:21-1 to -71, "is to provide some income for the worker earning nothing, because he is out of work through no fault or act of his own[.]" Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 375 (1989) (quotation omitted). "The basic policy of the [Act] is advanced . . . when benefits are denied in improper cases as when they are allowed in proper cases." Id. at 374.

The governing statute, N.J.S.A. 43:21-5(a), provides that an individual is disqualified for unemployment compensation benefits where he or she "has left work voluntarily without good cause attributable to such work." In order to avoid disqualification, the claimant has the burden of establishing that he left work for good cause attributable to the work. Brady v. Bd. of Review, 152 N.J. 197, 218 (1997). "Good cause means cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed, and the reasons for terminating employment must meet the test of ordinary common sense and prudence." Heulitt v. Bd. of Review, 300 N.J. Super. 407, 414 (App. Div. 1997) (internal quotations omitted). "Good cause" is defined by regulation as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." N.J.A.C. 12:17-9.1(b).

On appeal, claimant makes sweeping statements challenging the factual determination that he voluntarily terminated his employment. Arguing the Tribunal's findings were mere "assumptions," he asserts entitlement to unemployment benefits because he was fired. Also, citing Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 525 (2006), claimant suggests he was denied proper procedural due process as the matter was not "fully and fairly litigated." Finally, he maintains the employer's failure to appeal the Deputy's determination of eligibility precludes a challenge to an award of benefits. Following our review of these arguments, in light of the record and the principles that guide our review, we are in accord with the Board's decision denying claimant benefits.

First, although claimant alludes to due process deficiencies, he specifies no act or omission that impeded his opportunity to be heard. He suggests the appeals examiner's findings should have been disregarded by the Board because they were biased in favor of the employer. He also contends he did not fully explain his position because ...

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