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Emery v. Board of Review

2005 WL 2447794 (N.J. Super. App. Div. 2005) (Unpublished)

UNEMPLOYMENT—When the Unemployment Board of Review examines an Appeals Tribunal determination of eligibility, it must give deference to the credibility findings of the Tribunal and cannot disregard the testimony given at the hearing.

An employee appealed from the final decision of the unemployment Board of Review, which had reversed the decision of its Appeals Tribunal and disqualified her from receiving six weeks of unemployment compensation based on its conclusion that she was fired for misconduct relating to her work. The employee was fired for taking an unpaid day off after being told by her employers not to do so. During the hearing before the Appeals Tribunal, the employee, who worked as a store manager at a retail store, testified as to the procedure for taking days off. She explained that, in her six years employed at the store, in order to take an unpaid day off, one would mark the store calendar. More than a month before the date she took off, she marked the day on the calendar and arranged for another employee to work in her place. The employer disputed her contention and testified that employees needed explicit permission to take a day off. Two days before she took the day off, her employer told her not to do so, but did not tell her that she would be fired if she took the day off. Despite her employer’s instructions not to take the day off, she took the day off as she originally planned and was fired the next day. The Appeals Tribunal, in weighing the testimony of the employer and employee, found that the employee’s method of requesting time off was consistent with her prior requests for time off and that she was never told that the procedure she was using was incorrect. The Appeals Tribunal found it unreasonable for the employer to deny permission two days prior to the scheduled day off, as the employee had a reasonable expectation that she was permitted to take the day off. It found that the employee did not commit misconduct and was entitled to unemployment compensation. The Board of Review rejected the Appeal Tribunal’s conclusions and disregarded the employee’s testimony about the customary method for requesting time off. It found that the employee did not follow company procedures in requesting time off, and that by taking a day off after specifically being told not to, she was guilty of misconduct. As a result, the Board found that she was disqualified from receiving unemployment benefits.

The Appellate Division reversed. It noted that, under most circumstances, the Board of Review’s decision would be upheld as long as it was not arbitrary, capricious or unreasonable. However, in this case, the Court noted that the Board of Review was not entitled to such deference when it refused to adopt the findings of the Appeals Tribunal that listened to the testimony and weighed the credibility of the witness. The Court noted that the Board of Review did not explain why it determined that the employee did not follow proper procedures for requesting time off and in doing so rejecting the conclusions of the tribunal which found the employee credible. Since the Court did not defer to the Board’s decision, it had to determine whether the employee’s failure to come to work constituted misconduct sufficient to disqualify her from receiving unemployment compensation. The Court found that there was insufficient credible evidence to contradict the Appeal Tribunal’s conclusions.


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