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Jasiak v. Board of Review

Superior Court of New Jersey, Appellate Division

August 26, 2013

ROGER C. JASIAK, Appellant,
v.
BOARD OF REVIEW, DEPARTMENT OF LABOR and BAYSHORE FITNESS AND WELLNESS CENTER OF OLD BRIDGE, L.L.C., Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued August 21, 2013

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 349, 212.

Roger C. Jasiak, appellant, argued the cause pro se.

Christopher J. Hamner, Deputy Attorney General, argued the cause for respondent Board of Review (John J. Hoffman, Acting Attorney General, attorney; Lisa A. Puglisi, Assistant Attorney General, of counsel; Mr. Hamner, on the brief).

Respondent Bayshore Fitness and Wellness Center, L.L.C. has not filed a brief.

Before Judges Waugh and Haas.

PER CURIAM

Appellant Roger C. Jasiak appeals from the May 31, 2012 decision of the Board of Review (Board) affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to the work. We affirm.

Appellant was employed by Bayshore Fitness and Wellness Center, L.L.C. (Bayshore) as a certified personal trainer from July 2005 until July 13, 2011. As a condition of his employment, appellant was required to hold a personal training certification issued by the International Fitness Association.

Appellant obtained the required certification when he began his employment and he had renewed it on two prior occasions. However, he let the certification expire in May 2009. He did not take the required certification test at that time and he did not renew the license. Appellant testified he forgot to renew the certificate and alleged the managing company that operated Bayshore in 2009 failed to remind him to renew it. Bayshore[1]did not discover that appellant was not certified until July 13, 2011, when it terminated appellant's employment.

Appellant then filed an application for unemployment benefits, which was denied by the Director on the ground that appellant had been discharged for misconduct related to his work. Appellant appealed and the Appeal Tribunal affirmed the denial of benefits, but that, by failing to maintain the required certification, appellant left work voluntarily without good cause attributable to the work. The Board affirmed the Appeal Tribunal's determination.

This appeal followed. Before us, appellant contends the Board erred in finding he was disqualified for benefits pursuant to N.J.S.A. 43:21-5(a). We disagree.

Our review of an administrative agency decision is limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). "'[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.'" Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App. Div. 1985)). "If the Board's factual findings are supported 'by sufficient credible evidence, [we] are obliged to accept them.'" Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982)). Only if the Board's "action was arbitrary, capricious, or unreasonable" should it be disturbed. Ibid.

An employee is disqualified for benefits:

For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes re-employed and works eight weeks in employment . . . and has earned in employment at least ten times the individual's weekly benefit rate.
[N.J.S.A. 43:21-5(a).]

This statute expresses the legislative intent that benefits be paid only to those who have become unemployed through no fault of their own. Indeed, the Board is obligated to preserve the fund against the claims of those not intended to share in its benefits. Brady v. Bd. of Review, supra, 152 N.J. at 212.

As the Supreme Court has held, "[w]here it is reasonably foreseeable that an employee's voluntary conduct will render him unemployable, and his actions actually do lead to the loss of a prerequisite of employment, the employee leaves work voluntarily without good cause attributable to the work under N.J.S.A. 43:21-5(a)." Yardville Supply Co. v. Bd. of Review, 114 N.J. 371, 377 (1989). The New Jersey Department of Labor and Workforce Development adopted a regulation, N.J.A.C. 12:17-9.10(b) to codify this standard. This regulation provides that

[i]f an individual fails to apply for or renew a prerequisite license which is needed to perform the duties of his or her employment, and he or she is separated from work for not possessing the required license, the separation from work shall be considered a voluntary leaving of work and the individual shall be disqualified for benefits.

The Board properly applied this standard in rejecting appellant's claim to benefits. As a condition of his employment, appellant was required to maintain his certification as a personal trainer. He failed to do so. Although he asserts it was his employer's obligation to remind him to renew the certification, there is nothing in the record to support this claim. The certification card had the expiration date printed on it and appellant had the card in his possession. Appellant acknowledged he was aware of the renewal requirement and that he did not hold the required certification for over two years prior to the termination of his employment.

Applying our highly deferential standard of review, we find no basis to interfere with the Board's decision that, under these circumstances, appellant was ineligible for unemployment benefits. The Board's determination was supported by substantial, credible evidence, and we find no reason to disturb it.

Affirmed.


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