Domenico v. Board of Review, Dept. of Labor & Industry

• Decision Date: 08 December 1983
• Parties: Mary Ann DOMENICO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR & INDUSTRY, State of New Jersey, and Ancora State Hospital, Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 284

192 N.J.Super. 284

469 A.2d 961

Mary Ann DOMENICO, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR & INDUSTRY, State of

New Jersey, and Ancora State Hospital, Respondents.

Superior Court of New Jersey,

Appellate Division.

Submitted Nov. 15, 1983.

Decided Dec. 8, 1983.

Bertman, Johnson & Sahli, Hammonton, attorneys for appellant (Brian G. Howell, Hammonton, of counsel and on the brief).

Irwin I. Kimmelman, Atty. Gen., of New Jersey, attorney for respondents (Michael S. Bokar, Deputy Atty. Gen., of counsel; Donald M. Palombi, Deputy Atty. Gen., on the brief).

Before Judges MICHELS, KING and DREIER.

The opinion of the court was delivered by

MICHELS, P.J.A.D.

Claimant Mary Ann Domenico (Domenico) appeals from a decision of the Board of Review (board) affirming an appeal tribunal decision holding her disqualified from unemployment compensation benefits. The appeal examiner found that Domenico left work as a music therapist at Ancora State Psychiatric Hospital without good cause attributable to such work. Domenico argues that her fear of suffering physical harm by hospital patients was reasonable and constituted good cause to voluntarily terminate employment. She contends that the decision to the contrary by the board was without support by substantial evidence in the record as a whole and therefore she is qualified to receive unemployment benefits. We agree and reverse the decision of the board.

The New Jersey Unemployment Compensation Law, N.J.S.A. 43:21-5(a), provides, in pertinent part, that an individual shall be disqualified for unemployment benefits:

For the week in which he has left work voluntarily without good cause attributable to such work, and for each week thereafter until he has earned in employment ... at least 4 times his weekly benefit rate, as determined in each case....

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.' " Condo v. Review Bd., 158 N.J.Super. 172, 174, 385 A.2d 920 (App.Div.1978) (quoting Goebelbecker v. State, 53 N.J.Super. 53, 57, 146 A.2d 488 (App.Div.1958)); Associated Utility Services v. Review Bd., 131 N.J.Super. 584, 586, 331 A.2d 39 (App. Div.1974); Zielenski v. Review Bd., 85 N.J.Super. 46, 52, 203 A.2d 635 (App. Div.1964); Morgan v. Review Bd., 77 N.J.Super. 209, 213, 185 A.2d 870 (App.Div.1962). In Krauss v. A. & M. Karagheusian, 13 N.J. 447, 100 A.2d 277 (1953), the Supreme Court, in discussing the meaning of "good cause" as used in N.J.S.A. 43:21-5(a) before the most recent amendment (passed in 1961) which requires good cause for voluntarily leaving to be "attributable to such work," commented:

... The Legislature contemplated that when an individual voluntarily leaves a job under the pressure of circumstances which may reasonably be viewed as having compelled him to do so, the termination of his employment is involuntary for the purposes of the act. In statutory contemplation he cannot then reasonably be judged as free to stay at the job. [at 464, 100 A.2d 277] In scrutinizing an employee's reason for leaving, the test is one of ordinary common sense and prudence. Zielenski v. Review Bd., supra 85 N.J.Super. at 52, 203 A.2d 635. "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." Medwick v. Review Bd., 69 N.J.Super. 338, 345, 174 A.2d 251 (App.Div.1961). The decision to leave employment must be compelled by real, substantial and reasonable circumstances not imaginary, trifling and whimsical ones. See Krauss v. A. & M. Karagheusian, Inc., supra 13 N.J. at 464, 100 A.2d 277 (quoting with approval from Bliley Elec. Co. v. Unemployment Comp. Review Bd., 158 Pa.Super. 548, 45 A.2d 898, 903 (1946)). Threats of physical violence directed to an employee from which he may reasonably conclude that his personal safety is endangered have been found by this court to constitute good cause for that employee to voluntarily leave his employment. Condo v. Review Bd., supra 158 N.J.Super. at 175, 385 A.2d 920; cf. Associated Utility Services v. Review Bd., supra 131 N.J.Super. at 587, 331 A.2d 39. However, it is the employee's responsibility to do what is necessary and reasonable in order to remain employed. Condo v. Review Bd., supra 158 N.J.Super. at 175, 385 A.2d 920; see Zielenski v. Review Bd., supra 85 N.J.Super. at 53-54, 203 A.2d 635.

In our view the record overwhelmingly demonstrates that Domenico's reasonable fear of imminent physical harm justified her voluntary termination of employment. Domenico had twice been assaulted while in a closed ward at the Ancora State Psychiatric Hospital. Obviously, her concerns for her safety were not imaginary, trifling or whimsical. The fact that one of the attacks upon her required that she be hospitalized compels the conclusion that the desire to be protected from conditions where such an incident might reoccur is a natural reaction of a person of common sense and prudence. Thus, Domenico's fears were well founded and clearly justified her leaving work.

We are not convinced by respondents' argument that the incidents experienced by Domenico were not abnormal and could be expected to occur due to the nature of her job and the condition of the patients she was working with. The nature of the work does not defeat a showing of good cause where,...