WILLIAM SGOURDOS v. BOARD OF REVIEW AND ATLANTIC PACIFIC LOGISTICS NETWORK INC (2011)

Appellant William Sgourdos appeals from a decision of the Board of Review affirming a decision of the Appeal Tribunal that he was disqualified for unemployment compensation benefits under N.J.S.A. 43:21-5(a) because he left work voluntarily without good cause attributable to the work.   We affirm.

Appellant was previously employed by Timex Express (Timex) as Vice President of Sales.   Respondent Atlantic Pacific Logistics Networks Inc. (Atlantic Pacific) acquired Timex and hired appellant as a salesperson in March 2008.   In addition to an annual salary, appellant could earn a 2% commission for business he generated from new accounts for the first year, 1% commission the second year, and no commission the third year.   Although the parties had no agreement as to when the commissions would be paid, they were ordinarily paid when the customer paid its account.   The collection process took approximately two months.   Appellant admitted that non-payment of an account would impact his ability to earn and collect a commission.

Between March 2008 and November 2008, appellant generated $80,046.05 in sales.   If each customer paid its account, appellant would have received a $1600 commission.   However, because several accounts had not been paid by November 2008, appellant was only due a commission of $324.26.

Appellant did not receive any commission by November 2008, supposedly due to a problem with the computer program Atlantic Pacific had established to track commissions.   To compensate appellant for the delay, Atlantic Pacific raised his annual salary by $200 per week until a commission structure could be established.

Appellant resigned on November 3, 2008, stating he was starting his own business and was taking with him some of the accounts he had at Atlantic Pacific.   Appellant's new business failed in December 2008.   He filed a claim for unemployment benefits as of January 4, 2009.   The Deputy Director disqualified appellant for benefits, finding “that he left work voluntarily without good cause attributable to the work.”   Appellant appealed, claiming he would not have left his job if Atlantic Pacific had paid his commissions.   The Appeal Tribunal affirmed, finding that appellant left work because he had not received his commissions, Atlantic Pacific increased his salary by $200 per week in order to accommodate the delay in paying the commissions, and although appellant attempted to resolve the issue with his supervisor, he did not try to do so with Atlantic Pacific's president, who was accessible to appellant by e-mail or cell phone.   The Appeal Tribunal concluded that appellant's leaving his job because he did not receive his $342.26 commission “did not demonstrate a cause sufficient to justify one leaving the ranks of the employed to join the ranks of the unemployed.   In addition, [appellant] did not make a reasonable attempt to remain employed with [Atlantic Pacific] before starting his own business.”

The Board affirmed.   This appeal followed.   On appeal, appellant contends that he is not disqualified from receiving unemployment benefits under N.J.S.A. 43:21-5(a) because he voluntarily quit to take a better position and because he did not receive his commissions.¹  We disagree.

Our review of an administrative agency decision is limited.  Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).  “ ‘[I]n reviewing the factual findings made in an unemployment compensation proceeding, the test is not whether [we] would come to the same conclusion if the original determination was [ours] to make, but rather whether the factfinder could reasonably so conclude upon the proofs.’ ”  Ibid. (quoting Charatan v. Bd. of Review, 200 N.J.Super. 74, 79 (App.Div.1985)).  “If the Board's factual findings are supported ‘by sufficient credible evidence, [we] are obliged to accept them.’ ”  Ibid. (quoting Self v. Bd. of Review, 91 N.J. 453, 459 (1982).   We also give due regard to the agency's credibility findings.  Logan v. Bd. of Review, 299 N.J.Super. 346, 348 (App.Div.1997).  “Unless ․ the agency's action was arbitrary, capricious, or unreasonable, the agency's ruling should not be disturbed.”  Brady, supra, 152 N.J. at 210.

An employee is disqualified for benefits:

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 works four 2 weeks in employment․

[N.J.S.A. 43:21-5(a).]

An employee who has left work voluntarily has the burden of proving that he or she “did so with good cause attributable to the work.”  Brady, supra, 152 N.J. at 218 (citing Zielenski v. Bd. of Review, 85 N.J.Super. 46, 52 (App.Div.1964);  Goebelbecker v. State, 53 N.J.Super. 53, 59 (App.Div.1958));  see also Stauhs v. Bd. of Review, 93 N.J.Super. 451, 457 (App.Div.1967);  Morgan v. Bd. of Review, 77 N.J.Super. 209, 213 (App.Div.1962);  N.J.A.C. 12:17-9.1(c).  “While the statute does not define ‘good cause,’ our courts have construed the statute to mean ‘cause sufficient to justify an employee's voluntarily leaving the ranks of the employed and joining the ranks of the unemployed.’ ”  Domenico v. Bd. of Review, 192 N.J.Super. 284, 287 (App.Div.1983) (quoting Condo v. Bd. of Review, 158 N.J.Super. 172, 174 (App.Div.1978)).  N.J.A.C. 12:17-9.1(b) defines “good cause attributable to such work” as “a reason related directly to the individual's employment, which was so compelling as to give the individual no choice but to leave the employment.”

An employee who leaves work for good, but personal, reasons is not deemed to have left work voluntarily with good cause.  Brady, supra, 152 N.J. at 213;  Self, supra, 91 N.J. at 457;  Rider Coll. v. Bd. of Review, 167 N.J.Super. 42, 47-48 (App.Div.1979).  “ ‘Mere dissatisfaction with working conditions which are not shown to be abnormal or do not affect health, does not constitute good cause for leaving work voluntarily.’ ”  Domenico, supra, 192 N.J.Super. at 288 (quoting Medwick v. Bd. of Review, 69 N.J.Super. 338, 345 (App.Div.1961)).  “ ‘The decision to leave employment must be compelled by real, substantial and reasonable circumstances ․ attributable to the work.’ ”  Shuster v. Bd. of Review, 396 N.J.Super. 240, 244-45 (App.Div.2007) (quoting Fernandez v. Bd. of Review, 304 N.J.Super. 603, 606 (App.Div.1997));  see also In re N.J.A.C. 12:17-9.6 ex. rel. State Dep't of Labor, 395 N.J.Super. 394, 399-400 (App.Div.2007).  “[I]t is the employee's responsibility to do what is necessary and reasonable in order to remain employed.”  Domenico, supra, 192 N.J.Super. at 288 (citing Condo, supra, 158 N.J.Super. at 175;  Zielenski, supra, 85 N.J.Super. at 53-54).

Here, the determination that appellant left work without good cause attributable to the work is amply supported by substantial credible evidence in the record as a whole, and is not arbitrary, capricious, or unreasonable.   Appellant's non-receipt of a $324.26 commission, and his decision to start his own business, do not constitute good cause for leaving work voluntarily.

Affirmed.

FOOTNOTES

FN1. We decline to address appellant's contentions, raised for the first time on appeal, that he lost $30,000 in commissions and was told that layoffs were imminent.   See State v. Robinson, 200 N.J. 1, 20 (2009);  Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997);  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973)..  FN1. We decline to address appellant's contentions, raised for the first time on appeal, that he lost $30,000 in commissions and was told that layoffs were imminent.   See State v. Robinson, 200 N.J. 1, 20 (2009);  Alloway v. Gen. Marine Indus., L.P., 149 N.J. 620, 643 (1997);  Nieder v. Royal Indem.   Ins. Co., 62 N.J. 229, 234 (1973).

FN2. An amendment to N.J.S.A. 43:21-5(a), effective July 1, 2010, substituted “eight weeks” for “four weeks.”.  FN2. An amendment to N.J.S.A. 43:21-5(a), effective July 1, 2010, substituted “eight weeks” for “four weeks.”

PER CURIAM