RONSON L. SMITH v. BOARD OF REVIEW

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2710-04T5

RONSON L. SMITH,

Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR,

Respondent.

________________________________________________

 

Submitted December 7, 2005 - Decided

Before Judges Conley and Weissbard.

On appeal from the Board of Review, Department

of Labor, #44,204.

Ronson L. Smith, appellant pro se.

Peter C. Harvey, Attorney General, attorney for

respondent (Patrick DeAlmeida, Assistant Attorney

General, of counsel; John C. Turi, Deputy Attorney

General, on the brief).

PER CURIAM

Ronson L. Smith appeals from a final agency decision of the Board of Review which upheld a decision by the Appeal Tribunal affirming a determination by a Deputy to the Director, Division of Unemployment Insurance, that Smith was disqualified for unemployment benefits. We affirm.

Smith worked as a road driver for Jevic Transportation, Inc. (Jevic) from April 7, 2003 to June 10, 2004 when he resigned because he wanted employment that would allow him to be home every weekend. He then immediately found employment with Saia Motor Freight Line, Inc. (Saia). After several days of training, Smith began to drive on his own for Saia but within a few days was involved in an accident. The company had a policy that any accident within the first ninety days of employment would result in dismissal. After a discussion with his supervisor, Smith was told that his record would look better if he resigned, rather than being dismissed. He did so.

Smith filed for unemployment benefits. On August 5, 2004, the Deputy determined that he was disqualified for benefits from June 6, 2004 because he voluntarily left work with Jevic on June 12, 2004. The Deputy found that Smith's reason for leaving Jevic was personal and did not, therefore, constitute good cause attributable to the work. Concerning Saia, the Deputy determined that Smith was disqualified for benefits from June 20 through July 31, 2004 because, although his resignation under threat of dismissal constituted a discharge, his discharge was for misconduct connected with the work, described as his "willful and deliberate disregard of the standards of behaviour [the] employer had a right to expect." The "standard of behaviour" was the requirement of no accidents within ninety days.

Smith appealed the Deputy's determination, and a telephone hearing was conducted by the Appeal Tribunal on August 13, 2004. Smith and a representative of Jevic testified. On October 20, 2004, the Tribunal affirmed both of the Deputy's determinations. On further appeal, the Board of Review affirmed on December 27, 2004.

Clearly, the record supports the finding that Smith left his employment with Jevic for reasons not constituting "good cause attributable to [the] work." N.J.S.A. 43:21-5(a); see Brady v. Bd. of Review, 152 N.J. 197, 218 (1997); Domenico v. Bd. of Review, 192 N.J. Super. 284, 287 (App. Div. 1983). N.J.A.C. 12:17-9.1(b) defines "good cause" as "a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment." Indeed, Smith does not seriously dispute that he left Jevic for personal reasons that would not constitute good cause attributable to his work. See Rider College v. Bd. of Review, 167 N.J. Super. 42, 46 (App. Div. 1979). Thus, the record clearly supports the Board's decision as to Smith's disqualification for benefits resulting from his employment with Jevic.

That said, as the Board states, the issue of Smith's misconduct disqualification for benefits resulting from his Saia employment is moot. Under N.J.S.A. 43:21-5(a), Smith was disqualified for unemployment benefits from June 6, 2004 until he worked four weeks in subsequent employment and earned at least six times his weekly benefit rate. As the Board explains:

Smith filed a claim for benefits effective July 4, 2004. Thus, his base year is April 1, 2003 to March 31, 2004. N.J.S.A. 43:21-19(c)(1). To be eligible for unemployment benefits, he must have "[e]stablished at least 20 base weeks" during his base year or "earned remuneration not less than an amount 1,000 times the minimum wage." N.J.S.A. 43:21-4(e)(4)(A) & (B). In 2004, the "base week amount" was $103 and "an amount 1,000 times the Statewide average weekly remuneration" was $5,200. 35 N.J.R. 5546(b) (December 15, 2003). Smith did not satisfy either of these criteria through his employment with Saia, however, because he worked there for only "about seven days." Thus, his employment with Jevic must be examined to determine whether he is eligible for benefits. N.J.A.C. 12:17-9.1(e)9.

Since the Saia disqualification period runs from June 20 through July 13, 2004, it is subsumed within the Jevic disqualification period. As a result, we have no need to address the Saia misconduct determination, about which we have grave doubts. The Board's determination that Smith is disqualified for unemployment benefits is affirmed solely based on the Jevic employment.

 
Affirmed.

(continued)

(continued)

5

A-2710-04T5

December 28, 2005