NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 16, 2013
On appeal from the Board of Review, Department of Labor, Docket No. 336, 948.
Sarah S. Hymowitz argued the cause for appellant (Legal Services of New Jersey, attorneys; Janet Choi and Ms. Hymowitz, on the brief).
Christopher M. Kurek, Deputy Attorney General, argued the cause for respondents (Jeffrey S. Chiesa, Attorney General, and Lewis A. Schedinlin, Assistant Attorney General, of counsel; Mr. Kurek on the brief).
Respondent Aluminum Shapes, L.L.C. has not filed a brief.
Before Judges Harris and Hayden.
Hector Ortiz appeals from the final decision of the Board of Review, which deemed him ineligible for unemployment benefits based upon the administrative finding that he was terminated from his job for severe misconduct. N.J.S.A. 43:21-5(b). We reverse and remand for the Board to consider whether the grounds for Ortiz's termination constitute severe misconduct under Silver v. Board of Review, 430 N.J.Super. 44 (App. Div. 2013).
We discern the following facts from the record. Ortiz worked at Aluminum Shapes, L.L.C., as a mechanic's assistant from February 26, 1997 until September 17, 2010. The employer's attendance policy limited absenteeism and required all employees to call before the beginning of their shift if they were going to be absent from work. Using a point system to evaluate attendance, the employer terminated employees when they reached twenty-four points.
The employer had previously terminated Ortiz on April 16, 2010, for nine days of absence and failure to call the employer before taking the days off, which totaled twenty-seven points. After Ortiz reported that he was absent due to a family emergency, the employer reinstated him on April 19, 2010, and removed the twenty-seven points accumulated for the April absence from his record. He was left with his previously accumulated twenty points. The employer's records showed that Ortiz had never called out before any of these previous absences.
On September 9, 2010, a scheduled work day, Ortiz went to Connecticut to help his sister because she had broken her hand in an accident. He did not call his employer before leaving, and was absent from work for two days. Because he had again exceeded the attendance point maximum, the employer fired Ortiz on September 17, 2010.
Ortiz filed a claim for unemployment benefits on October 3, 2010. The Deputy Director (Deputy) of the Division of Unemployment and Disability Insurance ruled that Ortiz was disqualified for benefits because he was discharged for severe misconduct connected with work.
Ortiz filed an appeal of the Deputy's determination. The Appeals Tribunal held a telephone hearing on June 15, 2011, and affirmed the Deputy's decision in a written opinion on June 28, 2011. In ...