SUSAN J. MATYSKIEL v. BOARD OF REVIEW, DEPARTMENT OF LABOR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0029-05-T50029-05-T5

SUSAN J. MATYSKIEL,

Appellant,

v.

BOARD OF REVIEW, DEPARTMENT

OF LABOR,

Respondent.

___________________________________

 

Submitted March 29, 2006 - Decided April 27, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Board of Review, Department of Labor, Docket No. 73, 548.

Tompkins, McGuire, Wachenfeld & Barry, attorneys for appellant (Kimberly D. McDougal, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Alan C. Stephens, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Susan Matyskiel, appeals the decision of the Board of Review denying her claim for unemployment benefits. Claimant filed for benefits effective April 3, 2005. On April 25, 2005, the Deputy Director of the Division of Unemployment Insurance determined that claimant was disqualified from receiving unemployment benefits for six weeks, pursuant to N.J.S.A. 43:21-5(b), due to her discharge for misconduct. Claimant appealed this determination to the Appeal Tribunal (Tribunal), which conducted a hearing on May 19, 2005. The Tribunal issued a written opinion in which it found claimant failed to report for work on April 2 and 3, 2005, and that such conduct represented a "disregard of the standards of behavior which the employer has the right to expect of his employees." The Tribunal determined that claimant was disqualified for benefits under N.J.S.A. 43:21-5(b) from April 3 through May 14, 2005. Claimant appealed the Tribunal's determination to the Board of Review (Board). The Board adopted the Tribunal's findings of fact and conclusions of law and affirmed the Tribunal's decision. This appeal followed.

Claimant was hired in April 2002 to work as a customer service manager for respondent Sportcraft Limited, located in Mount Olive, New Jersey. She earned $60,000 per year in that position. Her normal work hours were 8:45 a.m. to 5:00 p.m., Monday through Friday. In the three years preceding her discharge, those work hours never changed. During the summer of 2004, Sportcraft commenced its implementation of a new computer software system. Claimant, along with other employees, was asked to oversee the implementation of the system. To do so required that the employees work over a weekend. Between July 2004 and January 2005, the weekends scheduled for the implementation of the system were cancelled on a number of occasions. In November 2004, claimant made plans to accompany her husband to attend a convention in Washington, D.C., on April 2 and 3, 2005.

In January 2005, Sportcraft notified its employees the computer software system was scheduled for implementation April 2 and 3, 2005. Claimant immediately realized this date conflicted with her plans, but she did not advise her employer. Since the implementation had been postponed in the past, claimant thought there was a possibility it would be postponed again. Claimant was also afraid of her supervisor, who she described as unpleasant. A week before the scheduled date, Sportcraft confirmed that the implementation would take place as scheduled. On March 31, 2005, claimant notified her employer she was unable to work the upcoming weekend. She spoke with the Human Resources manager and her supervisor. She was assured that her inability to work over the weekend would not be grounds for dismissal.

In determining claimant was disqualified for benefits from April 3 through May 14, 2005, under N.J.S.A. 43:21-5(b), the Tribunal found:

The claimant's action in failing to report for work on 04 02 2005 and 04 03 2005 without giving her employer proper notice, when she was aware months prior of her plans to attend a convention, which was the cause of the discharge, was a disregard of the standards of behavior which the employer has a right to expect of his employees and constitutes misconduct connected with the work.

The Board affirmed the decision for the reasons set forth in the Tribunal decision.

Claimant argues the Board's decision is inconsistent with the unrebutted and competent evidence presented. Specifically, she contends there is nothing in the record that establishes Sportcraft had the right to expect its employees to work weekends or beyond an employee's customary work schedule. Additionally, claimant contends she never agreed to work the weekend of April 2 and 3, 2005. Moreover, claimant urges nothing in the record indicates that the notice she gave to her employer on March 31, 2005, was unacceptable or improper. Claimant also contends she made arrangements with coworkers to cover her responsibilities and was assured by her superiors that she would not be dismissed for failing to work over the weekend.

The Board maintains claimant waited until two days prior to the scheduled weekend work assignment before notifying her employer that she was unable to work. The Board concluded her conduct evidenced a substantial disregard of the employer's interests and of claimant's duties and obligations to her employer.

Our standard of review with respect to unemployment compensation proceedings is quite limited. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We accord deference to those findings by an administrative agency that are supported by "sufficient credible evidence . . . ." Mullarney v. Bd. of Review, 343 N.J. Super. 401, 406 (App. Div. 2001). Moreover, we will not substitute our judgment for that of the agency or otherwise disturb the agency's decision, unless we conclude the decision reached was arbitrary, capricious or unreasonable. Brady, supra, 152 N.J. at 210. Our deference to an agency's findings of fact "is premised on our confidence that there has been a careful consideration of the facts in issue and appropriate findings addressing the critical issues in dispute." Bailey v. Bd. of Review, 339 N.J. Super. 29, 33 (App. Div. 2001). We are not persuaded that deference is appropriate in this case.

Misconduct is not defined in the Unemployment Compensation Law. See N.J.S.A. 43:21-5. Through case law, however, it has been developed to mean the employee has engaged in: (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; (4) negligent conduct in such degree or recurrence as to manifest culpability, wrongful intent, or evil design; or (5) conduct that has shown 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, 182-83 (App. Div. 1956) (quoting 48 Am. Jur., Social Security, Unemployment Compensation, etc., 38, at 541 (1943)), certif. denied, 23 N.J. 579 (1957). Although claimant gave her employer only two days notice of her unavailability to work the upcoming weekend, she testified she arranged for other coworkers to assume her responsibilities, and she was assured her inability to work the scheduled weekend was not grounds for dismissal. The Board argues claimant's claim must fail because she called no witnesses to support this testimony. While witnesses may appear during proceedings before the Tribunal, nothing in the regulations governing hearings before the Tribunal requires the production of witnesses. N.J.A.C. 12:20-3.1 to -5.1. Moreover, hearsay evidence is expressly permitted in proceedings before the Tribunal or Board. See N.J.A.C. 12:20-3.2; N.J.A.C. 12:20-4.2; N.J.A.C. 12:20, Appendix 1:12-15.1(b) at 20-8. To the extent the examiner found claimant's testimony unbelievable, nowhere does the examiner or Board address, discuss, or make separate findings on this issue. In the absence thereof, we are not prepared to conclude there is sufficient credible evidence in the record to support the Board's conclusion that claimant engaged in misconduct that disqualified her from the receipt of unemployment benefits. We remand to the Board for further proceedings consistent with this opinion. We do not retain jurisdiction.

Reversed and remanded.

 

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April 27, 2006