On appeal from the Board of Review, Department of Labor, Docket No. 237,927.
The opinion of the court was delivered by: Skillman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 27, 2012 -
Before Judges Parrillo,*fn1 Skillman and Hoffman.
The opinion of the court was delivered by SKILLMAN, J.A.D. (retired and temporarily assigned on recall).
The question presented by this appeal is whether an employee who accepted his employer's directive that he "had to resign" left his employment "voluntarily" and is therefore disqualified under N.J.S.A. 43:21-5(a) from receiving unemployment compensation benefits. We conclude that such a compelled resignation does not constitute a voluntary separation from employment that disqualifies an unemployed person from receiving unemployment compensation.
Appellant was employed by respondent Crossmark to "reset merchandise" on shelves of retail stores in New Jersey and Pennsylvania. Crossmark required appellant to use his own car to travel from store to store in performing this work, which he did from Monday through Thursday. He was paid $11 per hour.
While he was driving home on Wednesday June 3, 2009, appellant's car broke down, and he had to have it towed to a garage. Appellant notified his supervisor of this problem, and the supervisor excused appellant from coming to work the next day, which was a Thursday. At that point, appellant was due to return to work the following Monday.
On Thursday, the garage to which appellant's car was towed told him that his transmission was broken. Appellant did not have enough money or sufficient credit on his credit card to have this costly repair done or to rent a substitute car.
Appellant attempted to call his father to assist him in securing the money needed for the repair or obtaining alternative transportation. Appellant also tried to call a friend to help him with alternative transportation. However, appellant was not able to reach either his father or the friend.
Appellant called his supervisor at Crossmark on Friday to inform him of the situation he was facing. When appellant advised the supervisor that he was not sure he would have a car to perform his work the following Monday, the supervisor told appellant that he "had to resign" from his employment "effective immediately." Appellant testified that he did not want to leave his job, but felt he "had no choice." Thus, based on the Friday conversation with his supervisor, appellant considered himself to have been "terminated."
Appellant filed a claim for unemployment benefits the same day his supervisor told him he had to resign. The Division of Unemployment Compensation denied his claim on June 17, 2009 on the ground that he had left his employment voluntarily without good cause attributable to the work.
At the hearing before an Appeal Tribunal on appellant's appeal from the denial of benefits, Crossmark did not appear.
Consequently, appellant's testimony that his supervisor told him on Friday that he "had to resign" from his employment "effective immediately" was unrebutted. Based solely on appellant's testimony, the Appeal Tribunal upheld this denial, stating in a brief opinion:
The Board of Review has historically held that in cases bordering between discharge and voluntary leaving, the one who initiates that action which eventually leads to the separation is the one who is responsible for breaking the employer-employee relationship. Thus, the claimant left work because he was unable to obtain ...