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Vitelli v. Board of Review

A-5565-00T5 (N.J. Super. App. Div. 2002) (Unpublished)

UNEMPLOYMENT; LEAVE OF ABSENCE — Even though obtaining proper permission for a leave of absence may be cumbersome, taking a leave without employer permission constitutes leaving one’s job without good cause.

An unemployment examiner found that an employee had taken an unauthorized leave of absence which resulted in termination of his employment. “Pursuant to N.J.A.C. 12:17-12.3, a leave of absence must be mutually agreed upon between the employer and the employee. If the request for leave is based upon personal health reasons, as it was [in this case], it must be supported by competent medical certification. An unauthorized leave or leave taken after denial is deemed a voluntary leaving of work without good cause.” After the employee’s claim for unemployment benefits was denied, he appealed that decision. A court is not permitted “to interfere with credibility determinations of the initial factfinder, absent unusual circumstances… .” In this case, there were no unusual circumstances. The examiner found that the employee had spoken with his direct supervisor about psychological problems he was having. At that time, the employee indicated that he might need some time off. He was instructed to contact the human resources department. Although the employee’s psychiatrist thought that taking time off was a good idea, the psychiatrist never certified that the claimant was physically unable to work. The employee attempted to contact the human resources department, leaving messages, but not speaking to anyone. Even though he did not receive an approval for a leave of absence, he took time off and eventually received a letter from the human resources department terminating his employment. Giving substantial deference to the interpretation given by the Unemployment Board of Review, the Court refused to overturn the agency’s determination because it is only permitted to do so if the determination is found to be “arbitrary, capricious, unreasonable, unsupported by substantial credible evidence in the record as a whole, or inconsistent with the enabling statute or legislative policy.” In this case, although the Court understood the employee’s “frustration with an employer that fail[ed] to communicate properly with its employees,” it felt that such corporate inadequacy did not constitute good cause for leaving work without permission.


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