On appeal from the Board of Review, Department of Labor, Docket No. 257,429.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2011 -
Before Judges Alvarez and Skillman.
Stacey Blount appeals from the final decision of the Board of Review (the Board) affirming the denial of her application for unemployment benefits. For the reasons that follow, we vacate and remand.
Blount worked as a certified nursing assistant at the Voorhees Pediatric Facility from November 2006 through early October 2009. She was terminated from her employment because she was unable to renew her nursing assistant certification. Blount was not eligible to apply for recertification because of an unresolved criminal trespass charge then pending against her. She explains that the charges resulted from her innocent purchase of an automobile from a co-worker who had allegedly stolen the car from her former boyfriend. In her brief, Blount indicates that she has finally been acquitted of the charges. Unfortunately, because the grace period for automatic renewal of the nursing assistant certification has since expired, she must enroll in a nursing assistant course and submit to retesting in order to once again become certified.
Blount contends that the termination did not constitute voluntary separation from employment. An employee who leaves work voluntarily without good cause attributable to the work is barred from collecting benefits. N.J.S.A. 43:21-5(a).
Good cause has been defined as a reason "sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed . . . ." Shuster v. Bd. of Review, Dep't of Labor, 396 N.J. Super. 240, 244 (App. Div. 2007) (quoting Doering v. Bd. of Review, 203 N.J. Super. 241, 245-46 (App. Div. 1985)). The employee's reasons must be based on "real, substantial and reasonable circumstances attributable to the work." Shuster, supra, 396 N.J. Super. at 244-45 (quoting Fernandez v. Bd. of Review, 304 N.J. Super. 603, 606 (App. Div. 1997)). We employ a "test of 'ordinary common sense and prudence' . . . to determine whether [the] employee's decision to leave work constitutes good cause." In re N.J.A.C. 12:17-9.6 ex rel. State Dep't of Labor, 395 N.J. Super. 394, 400 (App. Div. 2007) (quoting Brady v. Bd. of Review, 152 N.J. 197, 214 (1997)). And the burden of showing good cause rests upon the claimant. See Rudebart v. Bd. of Review, 339 N.J. Super. 118, 123 (App. Div. 2001); Zielenski v. Bd. of Review, 85 N.J. Super. 46, 52 (App. Div. 1964).
It is every employee's responsibility to avoid "reckless decision[s] to gamble" with his ability to remain employed. See Yardville Supply v. Bd. of Review, 114 N.J. 371, 375 (1989). For this reason, when an employee engages in conduct knowing it will make continued employment impossible, he is condemned to suffer the consequences of the poor choice, and makes himself ineligible to collect benefits. Id. at 377.
In Yardville, a truck driver lost his job because he was convicted of driving while intoxicated, which cost him his driver's license. That situation, however, is very different from the circumstances alleged by Blount surrounding her criminal charge. If Blount's statement that she is innocent of any wrongdoing is true, the Yardville rationale should not bar her eligibility for benefits.
Our review of agency decisions is limited. Catholic Family & Cmty. Servs. v. State-Operated Sch. Dist., 412 N.J. Super. 426, 436 (App. Div. 2010). We only assess whether such decisions are arbitrary, capricious, or unreasonable, or lacking in fair support in the record. Ibid. (quoting In re Hermann, 192 N.J. 19, 27-28 (2007)).
The findings in this case, however, were based on a record lacking an important piece of information, due to circumstances beyond either party's control, i.e. the eventual disposition of the criminal charges. In fairness, until that occurred, it could not be known if Blount's separation from employment was "voluntary" within the meaning of the statute as interpreted by Yardville. The agency should be afforded the opportunity to make a final decision with all the pertinent facts before it and on a complete record. For that reason, we remand the matter to the Appeal Tribunal for a supplemental hearing. Blount should be granted the opportunity to develop a record regarding the charges, the acquittal, and the effect, if any, the underlying events may have on her ability to renew her certification.
Therefore, we remand for an additional hearing. We do not ...