ALEXANDER J. BEGUN 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NOT FOR PUBLICATION WITHOUT THE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-6504-04T36504-04T3

ALEXANDER J. BEGUN,

Petitioner-Appellant,

v.

BOARD OF REVIEW, DEPARTMENT OF LABOR,

Respondent-Respondent.

_____________________________________

 

Submitted June 5, 2006 - Decided July 17, 2006

Before Judges Cuff and Gilroy.

On appeal from a Final Decision of the Board of Review, Department of Labor, 71,043.

Dennis A. Maycher, attorneys for appellant (Brett F. George, of counsel, and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Michael J. Haas, Assistant Attorney General, of counsel; Andrea R. Grundfest, Deputy Attorney General, on the brief).

PER CURIAM

Claimant, Alexander J. Begun, appeals from a final determination of the Board of Review (Board) determining that he is ineligible for unemployment compensation benefits and must refund the sum of $7,826 received as benefits for the weeks ending February 14, 2004, through August 7, 2004. We reverse and remand.

Claimant was previously employed full-time by Aquatic Visions from October 2002, to February 6, 2004, where he cleaned and maintained fish tanks in commercial buildings in Manhattan, New York. Claimant filed a claim for unemployment compensation benefits on February 8, 2004, asserting that he had been involuntarily terminated from employment without cause and without explanation. After having received benefits for a year, a Deputy of the New Jersey Department of Labor, Division of Unemployment and Disability Insurance telephoned claimant on April 1, 2005, and during the telephone interview, claimant made a statement that led the Deputy to believe claimant had left employment voluntarily. Based on claimant's statement, the Deputy found claimant disqualified for benefits received commencing from February 1, 2004, determining that he left employment voluntarily without good cause attributable to the work. N.J.S.A. 43:21-5(a). Claimant appealed.

At a hearing conducted by the Appeal Tribunal on May 4, 2005, claimant testified that he had not left employment voluntarily; he had made the statement to the Deputy because the Deputy caught him off guard; and in answering the Deputy's question, he responded with information concerning his employment prior to Aquatic Vision, which he had left voluntarily. The employer did not appear at the hearing. The Appeal Tribunal affirmed, and directed that claimant refund the benefits he had received for the weeks ending February 14, 2004, through August 7, 2004. After a further administrative appeal, the Board affirmed by letter decision of May 19, 2005.

On appeal, claimant argues that the decision of the Board should be reversed, and the matter remanded for further proceedings. Claimant contends: 1) the Appeals Examiner failed to inform claimant that he had the right to "examine or cross-examine witnesses, inspect documents, and explain or rebut any evidence," citing N.J.A.C. 1:12-14.2(b); and 2) the Appeal Tribunal improperly based its decision on hearsay evidence of the employer's office manager. The Board concedes that it did not address the impact of claimant's testimony made before the Tribunal Examiner, and whether the statement made to the Deputy was a mistake caused by passage of time between his claim and the Deputy's telephone inquiry. The Board also concedes that it did not assess the impact of the employer's failure to appear at the Appeal Tribunal hearing concerning the admissibility of a statement that had been provided by the employer's office manager during the initial telephone inquiry of the Deputy.

After a review of the record and the briefs submitted, we conclude that the matter must be remanded "in the interest of justice" to ensure that the case is fairly adjudicated on the basis of a complete record and pursuant to applicable statutory, judicial, and administrative rules. Texter v. Dep't of Human Servs., 88 N.J. 376, 383 (1982); In re United Parcel Serv., Inc., 255 N.J. Super. 195, 205 (1992). See Mortgage Bankers Ass'n of N.J. v. N.J. Real Estate Comm'n, 102 N.J. 176, 191 (1986) (In some cases, "a remand is essential in order to permit the development of a comprehensive record.").

Accordingly, the decision of the Board is reversed, and the matter is remanded to the administrative agency for a new hearing before the Appeal Tribunal on notice to both claimant and the employer. We do not retain jurisdiction.

 

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A-6504-04T3

July 17, 2006