JUDY MURRAY v. BOARD OF REVIEW et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0945-04T3

JUDY MURRAY,

Claimant-Appellant,

v.

BOARD OF REVIEW and
MORTON BUILDINGS, INC.,

Respondents-Respondents.

________________________________________________________________

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September 27, 2005

Submitted September 14, 2005 Decided

Before Judges Parker and Levy.

On appeal from a Final Decision of the
Board of Review, Department of Labor, 30,331.

Judy Murray, appellant pro se.

Peter C. Harvey, Attorney General of New
Jersey, attorney for respondent Board of
Review (Patrick DeAlmeida, Assistant Attorney
General, of counsel; John C. Turi, Deputy
Attorney General, on the brief).

Respondent Morton Buildings, Inc., did not
file a brief.

PER CURIAM

Claimant appeals from a Board of Review (Board) final decision dated July 26, 2004, in which she was disqualified for benefits because she was terminated from employment for chronic lateness, characterized as "misconduct connected with the work," and ordered her to refund $824 she had received in benefits.
Claimant worked for Morton Buildings, Inc. (Morton Buildings) for approximately fifteen years. When she was terminated on February 25, 2004, she applied for and was initially granted unemployment benefits. After the facts were disclosed, however, she was disqualified from receiving benefits and notified to return the benefits already paid. Claimant appealed, and after a telephone hearing, the Appeal Tribunal determined that she was, indeed, disqualified under N.J.S.A. 43:21-5(b) and that she was liable for a refund of the benefits she had received.
During the telephonic hearing, claimant's immediate supervisor, James Burg, testified that claimant routinely arrived at the office five to ten minutes late and then spent another five to ten minutes taking care of personal matters before she was ready to work. She did the same thing at lunch time, resulting in lateness twice a day. On occasion, she was thirty to forty-five minutes late. He explained that claimant worked in a construction office that required someone to be available to answer the phones at 8:00 a.m., and if no one was there to answer the phones, "we are missing a potential client or missing an important call." The employer's policy regarding timeliness was stated in the employee handbook, a copy of which claimant had received.
Claimant received a written warning in October 2001 but, rather than improving, her tardiness became worse. Thereafter, Burg talked to claimant a number of times about arriving on time. A week before she was terminated, claimant was late again and told Burg that she was "doing the best I can." Burg concluded that if this was the best she could do at arriving timely, the situation would not improve. Burg then consulted with his superiors regarding termination procedure. On February 25, 2004, plaintiff was about five minutes late again. Burg had received authorization from the main office to terminate her and did so.
During her testimony, claimant admitted that she was late "a couple of times a week," because the clock in her car was "apparently . . . a couple of minutes off." When asked by the hearing officer if she attempted to change the time on the clock in her car, she responded, "No. No I didn't." She also indicated that her timeliness depended on traffic and some days she "was stuck behind a garbage truck or whatever." She acknowledged that she had been warned about her tardiness and that it had been noted on her written evaluation. She tried to improve her timeliness but was still late. Nevertheless, she claimed that she never knew her job was in jeopardy and that it was a "total shock" when she was terminated.
After hearing the testimony, the Appeal Tribunal determined that claimant was disqualified for benefits under N.J.S.A. 43:21-5(b) because the discharge was for "misconduct connected with the work." She appealed and the Board affirmed the Appeal Tribunal decision, except for the amount of the refund.
Claimant now appeals the Board's decision, arguing that her chronic lateness was "nothing more than the sort of inadvertent, unintentional or neglectful conduct which the courts have stated does not qualify as 'misconduct' for the purposes of disqualification from benefits. While it may have justified a discharge, it does not constitute misconduct." We find no merit in this argument.
N.J.S.A. 43:21-5(b) provides:
An individual shall be disqualified for benefits:
. . . .
(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period), as determined in each case.
 
The term "misconduct connected with the work" is not defined in the Unemployment Compensation Law. It has, however, been addressed in case law.
Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be [1] an act of wanton or willful disregard of the employer's interest, [2] a deliberate violation of the employer's rules, [3] a disregard of standards of behavior which the employer has the right to expect of his employee, or [4] negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or [5] show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

[Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957) (quoting 48 Am. Jur., Social Security, Unemployment Compensation 38 at 541 (1943)).]
 
"Misconduct" does not mean "mere mistakes," "minor but casual or unintentional carelessness or negligence," or "failure of performance as a result of inability or incapacity, inadvertence in isolated instances." Beaunit, supra, 43 N.J. Super. at 182 (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941); Kempfer, Disqualifications for Voluntary Leaving and Misconduct, 55 Yale L.J. 147, 162-66 (1945)). Misconduct does include deliberate refusal to comply with the employer's reasonable work rules, however. Broderick v. Bd. of Review, 133 N.J. Super. 30, 33 (App. Div. 1975). While an isolated minor violation of the employer's rules may not qualify as "misconduct," Demech v. Bd. of Review, 167 N.J. Super. 35, 39 (App. Div. 1979), in our view, claimant's repeated violation of her employer's rules regarding timeliness, in the face of warnings and without any reasonable excuse, constitutes deliberate refusal to comply with the employer's reasonable workplace rules.
An employer has a right to expect an employee to appear for work timely, particularly when the employer is dependent upon the employee's timeliness to cover specific areas of responsibility, in this case, answering the telephones during office hours. Claimant's statement in her brief that her chronic lateness was "nothing more than . . . inadvertent, unintentional or neglectful conduct," along with her lack of any reasonable explanation for her tardiness, demonstrates a disregard for the standards the employer had a right to expect.
We have carefully considered the record before us, and we are satisfied that the Board properly characterized claimant's chronic lateness as "misconduct" and disqualified her from benefits under N.J.S.A. 43:21-5(b). R. 2:11-3(e)(1)(D).

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Affirmed.

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