ETHAN A. HABRIAL v. BOARD OF REVIEW, DEPARTMENT OF LABOR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3914-04T53914-04T5

ETHAN A. HABRIAL,

Petitioner-Appellant,

v.

BOARD OF REVIEW,

DEPARTMENT OF LABOR

and QUALITY COATINGS.

Respondents-Respondents.

______________________________

 

Submitted May 2, 2006 - Decided May 16, 2006

Before Judges Coburn and S.L. Reisner.

On appeal from a Final Decision of the Board of Review, Department of Labor, 32,694.

Ethan A. Habrial, appellant pro se.

Zulima V. Farber, Attorney General, attorney for respondent Board of Review (Michael J. Haas, Assistant Attorney General, of counsel; Jennifer B. Pitre, Deputy Attorney General, on the brief).

PER CURIAM

Ethan Habrial appeals from a final determination of the Board of Review, dismissing as untimely his appeal from an initial denial of his unemployment benefit claim. We reverse and remand to the Board with direction to decide the merits of his claim.

I

Habrial, a machine operator, initially quit his job on December 28, 2003, claiming that fellow employees were harassing him and sabotaging the machine he worked on because they thought he was gay. He voluntarily returned to work on January 10, 2004, but was fired on February 11, 2004.

Habrial filed a claim for unemployment benefits on December 28, 2003. The Deputy denied his claim on March 18, 2004 on the grounds that he was terminated for misconduct. Habrial sent the agency a long rambling letter objecting to the disqualification. The letter was dated April 5, and was date stamped received April 12, 2004. Thereafter, he filed a formal appeal on April 18, 2004. He had a hearing on the merits before the Appeal Tribunal on May 21, 2004. The employer participated in the hearing, and neither the employer nor the Appeals Examiner raised the issue of the timeliness of Habrial's appeal. The Appeals Tribunal upheld the denial of Habrial's claim on May 28, 200l, on the grounds that he was fired for hanging up on his supervisor twice. There is no dispute that Habrial then filed a timely appeal to the Board.

In a decision dated September 27, 2004, the Board raised the issue of whether Habriel had voluntarily quit his job, an issue not addressed by the Appeal Tribunal. Further, although Habriel had already received a hearing and a decision on his initial appeal, the Board also sua sponte raised the issue of whether that initial appeal had been timely filed. The Board remanded the case to the Appeal Tribunal, and an additional hearing was held on November 18, 2004, to address the issue of the timeliness of claimant's initial appeal and the "voluntary quit" disqualification.

At the November 18, 2004 hearing, Habrial could not remember when he received the March 18, 2004 denial notice. The Appeal Tribunal decided, on November 18, 2004, that his appeal should be dismissed for being filed out of time. Habrial filed a timely appeal of this decision on November 26, 2004. On February 24, 2005, the Board of Review rejected his appeal and upheld the Appeal Tribunal's decision that the original appeal was out of time. The Board's decision stated in relevant part that the Deputy's determination disqualifying claimant was mailed to him on March 18, 2004. The Board further found:

The claimant did not receive that determination. The claimant contacted his local office to inquire about the determination, and the Deputy mailed another determination, which the claimant did receive. At the hearing, the claimant was unable to state on what date he contacted the local office, or on what date he received the determination. The Appeal Tribunal afforded the claimant two opportunities to give testimony on how much time elapsed between the date he received the determination and the date he filed his appeal; however, the claimant was unable to provide a timeframe, saying he did not know.

II

We find no error in the Board's determination to raise the issue of whether there was an additional ground for disqualifying Habrial, due to his having voluntarily quit his employment. See Heulitt v. Bd. of Review, 300 N.J. Super. 407, 413 (App. Div. 1997)(in deciding an appeal, the Board may find a claimant disqualified for benefits on a ground other than that found by the Appeals Tribunal). And we perceive no unfairness in the Board's decision to remand the matter to the Appeals Tribunal for a further hearing on the substantive issue of whether there was a voluntary quit. In fact, that appears to have been the proper issue raised by Habrial's December 28, 2003 claim. But we reach a different conclusion with respect to the Board's determination to raise the issue of the timeliness of Habrial's initial appeal eight months after he filed the appeal and after he had had a plenary hearing on the merits of that appeal.

We appreciate that it is the Board's responsibility to safeguard the Unemployment Fund. As we said in Heulitt:

The Board's duty is to "preserve the [unemployment compensation] fund for the payment of benefits to [eligible] individuals and to protect it against the claims of others who would prefer benefits to suitable jobs." The basic policy of the law is advanced when benefits are rightly denied in improper cases as well as when they are rightly granted in proper cases.

[Heulitt, supra, 300 N.J. Super. at 412; citation omitted.]

Consequently, the Board may properly raise an additional substantive basis for disqualification.

But the same policy considerations are not present when the Board sua sponte raises a procedural bar to a claim. And other policy considerations are implicated when the Board questions the timeliness of the appeal notice, sua sponte, many months after it was filed and after the claimant has already had a hearing on that appeal. As in this case, after the passage of many months the claimant may not remember the facts essential to determine whether the claim was really late or, if so, whether he had good cause for the late filing. See Rivera v. Bd. of Review, 127 N.J. 578, 585-86 (1992)(statutory time limit not jurisdictional and claimant may establish good cause for late filing). In these circumstances, the Board's action was fundamentally unfair and prejudicial to the claimant. Viewed from the perspective of the claimant and of the public in general, the Board's decision can only undermine confidence in the fairness of the agency's process, without furthering the essential policy of denying benefits to employees who have voluntarily chosen not to work. "[S]trict adherence to limitation periods without regard to their underlying purposes disserves the goals of justice." Id. at 585, citing White v. Violent Crimes Comp. Bd., 76 N.J. 368, 376 (1978).

Accordingly, we reverse the determination of the Board and remand for a decision on the merits of Habrial's claim. We recognize that our decision may require the Board to remand the case to the Appeal Tribunal to decide whether Habrial voluntarily left his job in December 2003 "without good cause attributable to [the] work." N.J.S.A. 43:21-5(a). All proceedings on remand shall be completed within ninety days.

Reversed and remanded.

 

(continued)

(continued)

6

A-3914-04T5

May 16, 2006