CHONG FAN VS. BOARD OF REVIEW (DEPARTMENT OF LABOR) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3199-17T3
CHONG FAN,
Appellant,
v.
BOARD OF REVIEW, DEPARTMENT
OF LABOR, and OFFICEMATE
INTERNATIONAL CORPORATION,
Respondents.
______________________________
Submitted January 24, 2019 – Decided April 9, 2019
Before Judges Fuentes and Moynihan.
On appeal from the Board of Review, Department of
Labor, Docket No. 132,599.
Chong Fan, appellant pro se.
Gurbir S. Grewal, Attorney General, attorney for
respondent Board of Review (Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Shareef M.
Omar, Deputy Attorney General, on the brief).
Respondent Officemate International Corporation has
not filed a brief.
PER CURIAM
Chong Fan appeals from the Board of Review's final administrative
decision disqualifying him for unemployment benefits because he was
discharged for simple misconduct connected to his employment as a shipping
department worker and finding he was liable to refund $996 he received as
benefits. The sole argument advanced in his self-authored merits brief is:
SINCE EMPLOYER KEPT USING REGULAR
HOURLY WAGE FOR CLAIMANT'S OVERTIME
WORK, CLAIMANT DID NOT FEEL
COMFORTABLE TO DO[] OVER THE WORK
WHICH WAS ALREADY COMPLETED
CORRECTLY AND [WOULD] CAUSE CLAIMANT
TO WORK OVERTIME. CLAIMANT WAS NOT
BEING [A] HYPOCRITE AND ANSWERED HIS
SUPERVISOR'S QUESTION BASED ON HIS TRUE
PERSONAL FEELING[S]. CLAIMANT WAS
TERMINATED BY HIS SUPERVISOR BECAUSE
HE DID NOT LIKE CLAIMANT'S ANSWER.
CLAIMANT SHOULD NOT HAVE BEEN
DISQUALIFIED FOR BENEFITS.
Appellant's argument that his discharge was due to his refusal to work
overtime because his employer historically violated the New Jersey State Wage
and Hour Law, N.J.S.A. 34:11-56a to -56a30, by paying only straight time for
overtime hours was not raised before the Board and will not be considered here.
Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Items 12A and 13A
of his appendix – proffered as evidence in support of his allegation of his
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employer's wage and hour violation – were not listed in the Statement of Items
Comprising the Record on Appeal. Further, a review of the transcript of the
hearing reveals appellant twice mentioned overtime; in both instances appellant
said only that the employer preferred he did not work overtime and did not want
him to work overtime.
Given our limited standard of review, we determine the Board's decision,
wholly agreeing with the Appeal Tribunal's determination, was not arbitrary,
capricious or unreasonable, Brady v. Bd. of Review, 152 N.J. 197, 210 (1997),
and affirm.
Following his termination, appellant collected unemployment benefits for
a three-week period. A deputy commissioner in the Department of Labor
subsequently issued a determination imposing a disqualification for benefits
because appellant was discharged for misconduct and ordering a refund of the
paid benefits. Appellant appealed and the Appeal Tribunal conducted a
telephonic hearing in which appellant, with an interpreter, and the employer
participated.
Appellant disputed the underlying facts that led to his termination. He
testified that after his employer told him to process a client's order that had to
be filled that day, he asked if the employer could switch the order because there
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was a "conflict" between that order and an order being filled by a co-worker.
Appellant said his supervisor responded, "I don't have any other client['s order]
for you. You couldn't handle the work I assigned to you. You are fired."
Appellant explained to the Appeal Tribunal that he did not believe his actions
constituted misconduct because he did not "intentionally violat[e] company
policy" but merely "provide[d] a suggestion . . . to minimize the work related
time wasted and . . . possibility mistakes would happen," and asked his
supervisor's opinion if he could switch orders.
The Appeal Tribunal, however, gave more weight to the employer's
testimony that appellant refused instructions to release the order because it was
"more likely . . . [he] did not want to spend the time required to complete" that
task. Appellant's actions, the Appeal Tribunal found, "were insubordinate
conduct, a disregard of the standards of behavior which the employer had the
right to expect of his employees." We are obliged to accept the Appeal
Tribunal's factual findings, adopted by the Board, because they are "supported
'by sufficient credible evidence.'" Brady, 152 N.J. at 210 (quoting Self v. Bd.
of Review, 91 N.J. 453, 459 (1982)). Those proofs establish that the employer
met its burden of proving appellant was discharged for misconduct. N.J.A.C.
12:17-10.1(f).
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Pursuant to N.J.S.A. 43:21-5(b), an applicant for unemployment
compensation benefits is disqualified for the week in which he or she has been
discharged for misconduct connected with the work and for seven weeks
immediately following the discharge. Under N.J.A.C. 12:17-2.1: "'Misconduct'
means simple misconduct, severe misconduct, or gross misconduct." The same
regulation defines "simple misconduct" as the "willful disregard of the
employer's interest, a deliberate violation of the employer's rules, [or] a
disregard of standards of behavior that the employer has the right to e xpect of
his or her employee[.]" N.J.A.C. 12:17-2.1.
Appellant's refusal to comply with the employer's instruction to fill the
order – which appellant acknowledged had to be filled that day per company
policy – was a "deliberate and wil[l]ful disregard of standards of conduct an
employer has a right to expect." Demech v. Bd. of Review, 167 N.J. Super. 35,
41 (App. Div. 1979). We agree with the Appeal Tribunal's decision, adopted by
the Board, that the employer proved appellant's intentional conduct, connected
with his work, disregarded the employer's reasonable standards of behavior, thus
amounting to simple misconduct. N.J.A.C. 12:17-2.1.
Affirmed.
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