FRANCESCA PISANI v. BOARD OF REVIEW and WORLD TRAVEL GROUP INC

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5634-06T25634-06T2

FRANCESCA PISANI,

Appellant,

v.

BOARD OF REVIEW and

WORLD TRAVEL GROUP,

INC.,

Respondents.

__________________________________

 

Submitted September 8, 2008 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Board of Review, Department of Labor and Workforce Development, Docket No. 140,041.

Francesca Pisani, appellant pro se.

Anne Milgram, Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; John C. Turi, Deputy Attorney General, on the brief).

Respondent World Travel Group, Inc. has not filed a brief.

PER CURIAM

Claimant Francesca Pisani appeals from the decision of the Board of Review (Board) dated May 18, 2007, denying her claim for unemployment benefits. We reverse.

The facts presented during the hearing before the Appeal Tribunal (Tribunal) were as follows. Claimant was employed by World Travel Group, Inc. in its operations department. She had been with the company for approximately fourteen years. In early December 2006, claimant told one of the company owners, Joseph Berardo, that she wanted to start working two days a week so that she could help her son, who needed a babysitter. He agreed and told her that he would help her out. Claimant went on vacation beginning December 21 and returned to work on January 2, 2007, at which time the general manager told her it was not possible that she could work two days a week. Claimant did not report to work the next day because she spoke to Berardo, who "told [her] to stay home[,] give [him] a couple of days[,] that he would call [her]." Berardo called her two days later and told her "well[,] Francesca[,] for now I don't have anything set up for you. Please go [to] unemployment and collect[.]"

Berardo testified on behalf of the company. He denied that he told claimant she could work two days a week. Instead, he told her that "[he] would try to find a position for her two days." He denied telling claimant to file for unemployment benefits and indicated that the full-time position was still available for claimant. When asked by the examiner whether he in fact told claimant that the full-time position was available, he responded, "I think she knows about that." When questioned further as to whether he called her to tell her a full-time position was still available, he stated, "I don't [know] if somebody call [sic] her in the office."

Claimant filed a claim for unemployment compensation benefits effective December 31, 2006. Her claim was denied by a deputy to the Director, Division of Unemployment Insurance, based upon the determination that she left work voluntarily on January 2, 2007 and without good cause attributable to the work. She was therefore disqualified for benefits in accordance with N.J.S.A. 43:21-5(a). Claimant appealed this determination to the Tribunal. The Tribunal found claimant's testimony credible and determined that "claimant would have been available to work her full-time hours" and that claimant's actions "were not a wanton or willful disregard of the employer's interest or a deliberate violation of the employer's rules." The Tribunal concluded that claimant was not disqualified under N.J.S.A. 43:21-5(a) because she was discharged and directed by her employer to "go file for unemployment." The employer appealed and the Board reversed the Tribunal's decision.

In reversing the decision of the Tribunal, the Board stated:

We disagree with the Appeal Tribunal that the claimant's leaving was not voluntary. The claimant was not told she could no longer work in her full[-]time position. The claimant initiated the separation when she failed to inform the employer she was willing to continue in full[-]time employment when her request for part[-]time work was denied. The claimant's leaving was for personal reasons and without good cause attributable to the work. Hence, the claimant is disqualified for benefits from December 31, 2006, in accordance with N.J.S.A. 43:21-5(a).

The present appeal followed.

N.J.S.A. 43:21-5(a) provides in pertinent part:

An individual shall be disqualified for benefits: (a) For the week in which the individual has left work voluntarily without good cause attributable to such work, and for each week thereafter until the individual becomes reemployed . . . and has earned in employment at least six times the individual's weekly benefit rate, as determined in each case.

The statute does not define "good cause." However, in Doering v. Bd. of Review, 203 N.J. Super. 241 (App. Div. 1985), we held that where the reason is "sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed[,]" good cause exists. Id. at 245-46.

In our review of decisions from an administrative agency, we recognize that our role is limited and an agency decision such as this is entitled to a presumption of validity. We will uphold an agency decision unless it is "arbitrary, capricious, or unreasonable [or] . . . 'clearly inconsistent with its statutory mission or with other state policy.'" Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)) (internal citations omitted). Nonetheless, no such deference is required where the Board declines to adopt the findings of fact of the Tribunal, whom the Board has designated to hear the witnesses and to make credibility findings. See Klusaritz v. Cape May County, 387 N.J. Super. 305, 313 (App. Div. 2006) (citing Cavalieri v. Board of Trustees, 368 N.J. Super. 527, 533-34 (App. Div. 2004)).

In rejecting the Tribunal's credibility determination that led the Tribunal to conclude that claimant would have resumed her full-time position but for being told to go collect unemployment, the Board inexplicably rejected the Tribunal's specific finding that claimant was credible in her testimony that she "was told nothing could be worked out for her and for her to file for unemployment."

In the absence of any explanation as why it decided not to defer to the credibility determination of the Tribunal, we find no reason to defer to the Board's conclusion that "claimant initiated the separation when she failed to inform the employer she was willing to continue in full[-]time employment when her request for part[-]time work was denied." As claimant testified, she never submitted her resignation orally or in writing. Rather, she was told to go home, then told nothing could be done for her and to go and collect unemployment. Under these circumstances, it was reasonable for claimant to have concluded that she had been terminated from further employment. The Board's determination that claimant left employment for "personal reasons and without good cause attributable to the work[,]" thereby disqualifying her for benefits from December 31, 2006, in accordance with N.J.S.A. 43:21-5(a), was thus arbitrary and unreasonable. Claimant is entitled to benefits.

Reversed.

 

Also referred to as Gilbert Berardi in portions of the appellate record.

Claimant also apparently testified that she wanted to work part-time due to stress caused by a heavy workload.

(continued)

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A-5634-06T2

October 7, 2008