Opinion
DOCKET NO. A-1351-13T3
03-19-2015
JEFFREY AUGUSTIN, Plaintiff-Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and CENTRAL JERSEY WASTE & RECYCLING, INC., Defendants-Respondents.
Karpf, Karpf & Cerutti, attorneys for appellant (Christine E. Burke, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Alan C. Stephens, Deputy Attorney General, on the brief). Bauch Zucker Hatfield, attorneys for respondent Central Jersey Waste & Recycling, Inc. (Kathryn Van Deusen Hatfield and Douglas S. Zucker, of counsel and on brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and O'Connor. On appeal from the Board of Review, Department of Labor, Docket No. 428,078. Karpf, Karpf & Cerutti, attorneys for appellant (Christine E. Burke, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review, Department of Labor (Alan C. Stephens, Deputy Attorney General, on the brief). Bauch Zucker Hatfield, attorneys for respondent Central Jersey Waste & Recycling, Inc. (Kathryn Van Deusen Hatfield and Douglas S. Zucker, of counsel and on brief). PER CURIAM
Appellant Jeffrey Augustin was employed as a driver by Central Jersey Waste and Recycling (Central) from June 2009 to April 29, 2013, when he was discharged for excessive tardiness. He appeals from a final decision of the Board of Review (Board) that he was disqualified from receiving unemployment benefits because he had been discharged for severe misconduct connected to his work. We affirm.
During the relevant time period, Augustin was required to report to work each day at 6:00 a.m. In March 2013, he received a verbal warning for excessive tardiness. Nonetheless, on April 9, 2013, he reported to work thirty minutes late; and on April 10 and 12, 2013, he reported to work one hour and ten minutes late. On April 16, 2013, Central issued a notice to Augustin suspending him for three days for excessive tardiness and, in the notice, warned Augustin that further tardiness would result in his termination. Augustin was thereafter suspended on April 24, 26 and 27, 2013.
On April 29, 2013, Augustin reported late to work by almost an hour at 6:57 a.m. and was terminated. Augustin appealed. The Appeal Tribunal determined that Augustin was disqualified for benefits under N.J.S.A. 43:21-5(b) for "severe misconduct connected with the work" based on his "repeated lateness to work, after receiving a written warning." The Board later affirmed the Appeal Tribunal and Augustin filed the within appeal.
Augustin argues that the decision of the Board is not supported by substantial evidence and that the Appeal Tribunal erred when it admitted into evidence two memoranda from Central he contends are hearsay: his April 16, 2013 suspension notice, and the April 29, 2013 discharge notice. We disagree and affirm.
At the hearing in the Appeal Tribunal, Augustin conceded his receipt on April 29, 2013, of the "termination letter." He also conceded his receipt of the verbal warning in March 2013, but denied that he had been suspended or that he had received the April 16, 2013 suspension notice. When asked whether he objected to the entry of the notices into evidence, Augustin replied, "No." The Appeal Tribunal, in its decision, found that defendant had been suspended; had received the April 16, 2013 suspension notice; and had been repeatedly late for work, as alleged by Central.
The Appeal Tribunal concluded that Augustin was disqualified for benefits under the statute because he was discharged for "severe misconduct connected with the work." In addition, the Appeal Tribunal stated:
Although the claimant contends he was discharged for other reasons,
there is insufficient evidence to support his allegations. Furthermore, during the Appeals Tribunal hearing he provided testimony that is contradicting to the statement he provided to the claims examiner on 5/17/13. This Appeals Tribunal views the claimant's sworn testimony given at a later date is an attempt to justify benefits entitlement. Since the claimant received a written warning for this type of behavior, his discharge rises to the level of severe misconduct connected with the work.The Board, as noted, affirmed the decision of the Appeal Tribunal, and noted that Augustin had been given a "full and impartial hearing and a complete opportunity to offer" evidence.
When reviewing an agency decision, an appellate court must determine whether sufficient credible evidence exists in the record from which the findings made could reasonably have been drawn. In re Taylor, 158 N.J. 644, 656 (1999). This review must encompass the "proofs as a whole" and must take into account "the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 598 (1965).
N.J.S.A. 43:21-5(b) identifies three categories of misconduct connected with the work that result in disqualification for unemployment benefits: misconduct, severe misconduct and gross misconduct. "Severe misconduct" was added to N.J.S.A. 43:21-5(b) as a new misconduct provision by amendment in 2010. Although the statute does not define this term, it provides examples of misconduct that the Legislature intended to include within that provision:
Examples of severe misconduct include, but are not necessarily limited to, the following: repeated violations of an employer's rule or policy, repeated lateness or absences after a written warning by an employer, falsification of records, physical assault or threats that do not constitute gross misconduct as defined in this section, misuse of benefits, misuse of sick time, abuse of leave, theft of company property, excessive use of intoxicants or drugs on work premises, theft of time, or where the behavior is malicious and deliberate but is not considered gross misconduct as defined in this section.In Silver, supra, we construed these examples "as requiring acts done intentionally, deliberately, and with malice[,]" and stated we understood intentional and malicious "to include deliberate disregard of the employer's rules or policies, or deliberate disregard of the standards of behavior that the employer has the right to expect of an employee." 430 N.J. Super. at 55-56.
[N. J.S.A. 43:21-5(b)].
In this case, Augustin had a history of repeated violations of Central's rules regarding attendance that resulted in a prior warning, and, shortly thereafter, a suspension. Following these steps, Augustin again was late for work and displayed a disregard of the standards his employer had the right to expect of him. We are therefore satisfied that the Board's determination that he was terminated for severe misconduct was supported by the credible evidence.
Augustin contends it was error for the Appeal Tribunal to have admitted into evidence the two memoranda, arguing that the memoranda were "hearsay." On this record, it is unnecessary for us to decide whether the memoranda are, in fact, hearsay at all. It is sufficient to note that Augustin did not object to their admission into the record, and that N.J.A.C. 1:12-15.1(b) explicitly authorizes the admission of "hearsay evidence." Such evidence may be accorded "whatever weight the examiner deems relevant, appropriate and reasonable."
Affirmed I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
N.J.A.C. 12:17-10.2(a) defines misconduct as an act that is "improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee." Accord Silver v. Bd. of Review, 430 N.J. Super. 44, 52-53 (App. Div. 2013); Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957).