KEITH R. SMITH,
Claimant-Appellant,
v.
BOARD OF REVIEW,
Respondent-Respondent.

______________________________________________________________

Submitted July 12, 2005 - Decided January 17, 2006

Before Judges Fuentes and R. B. Coleman.

On appeal from the Board of Review, Department of Labor, 29,689.

Keith R. Smith, appellant pro se.

Peter C. Harvey, Attorney General, attorney for respondent (Patrick DeAlmeida, Assistant Attorney General, of counsel; Ellen A. Reichart, Deputy Attorney General, on the brief.)

PER CURIAM

Claimant, Kevin Smith, appeals from a Board of Review (Board) final decision dated July 29, 2004. Claimant was disqualified for unemployment compensation benefits for six weeks from March 7, 2004 through April 17, 2004 pursuant to N.J.S.A. 43:21-5(b) because he was terminated from his employment for falsifying his timesheets. The Board characterized the falsification of timesheets as "misconduct connected with the work" and ordered a six week disqualification of benefits. We affirm.

According to the proofs presented by the employer, Oakwood, Inc., claimant worked as a maintenance person for Oakwood for roughly sixteen months from October 23, 2002 through March 8, 2004. Claimant received an employee handbook which provided that "falsification of documents or time sheets is grounds for immediate dismissal." Claimant had a history of dishonesty with Oakwood. In May 2003, claimant filled out a timesheet evidencing he worked on a particular Saturday, however, the maintenance director could not find claimant nor his van on the premises on that day. Claimant received a verbal warning for the incident. In July 2003, claimant's timesheet included time he spent helping a tenant from whom claimant received payment. Claimant was given a final written warning for the incident.

On March 3, 2004, claimant received permission to leave the employer's premises to engage in personal business. Claimant was observed leaving work at about 8:45 a.m. and returning at 9:45 a.m. In filling out his timesheet for March 3, however, claimant failed to document the time he was absent. Instead, his timesheet reflected that he had worked nonstop from 8:30 a.m. to 12:00 p.m. Oakwood terminated claimant from his employment.

The Appeal Tribunal determined claimant lacked the intent to falsify the timesheet and deemed him eligible for immediate benefits. The Board of Review reversed the Appeal Tribunal's decision since claimant had been warned on other occasions regarding such conduct, which evidenced his actions as misconduct under N.J.S.A. 43:21-5(b).

That statutory provision states:

An individual shall be disqualified for benefits:

. . . .

(b) For the week in which the individual has been suspended or discharged for misconduct connected with the work, and for the five weeks which immediately follow that week (in addition to the waiting period), as determined in each case.

Claimant now appeals, arguing that he did not intend to fill out his timesheets incorrectly. Instead, claimant asserts he merely made a mistake filling out the timesheet because he was rushed to complete it. Thus, since he lacked any intent to falsify the timesheet, claimant contends his action does not qualify as misconduct under N.J.S.A. 43:21-5(b).

"In reviewing the final determination of an administrative agency, we generally defer to the agency's findings of fact, unless those findings are not supported by sufficient, credible evidence in the record." Harris v. Bd. of Trs. of the Pub. Emples. Ret. Sys., 378 N.J. Super. 459, 464 (App. Div. 2005) (citing Kossup v. Board of Trustees, Police and Fireman's Retirement System, 372 N.J. Super. 468, 472 (App. Div. 2004)). "We will also reverse an agency's determination if it is arbitrary, capricious or unreasonable." Harris, supra, 378 N.J. Super. at 464 (citing Dennery v. Bd. of Ed. of the Passaic County Regional High School District # 1, 131 N.J. 626, 641 (1993)).

The term "misconduct connected with the work" is not defined in the N.J.S.A. 43-21-1 et seq. It has, however, been construed in our case law.

Misconduct within the meaning of an unemployment compensation act excluding from its benefits an employee discharged for misconduct must be [1] an act of wanton or willful disregard of the employer's interest, [2] a deliberate violation of the employer's rules, [3] a disregard of standards of behavior which the employer has the right to expect of his employee, or [4] negligence in such degree or recurrence as to manifest culpability, wrongful intent, or evil design, or [5] show an intentional and substantial disregard of the employer's interest or of the employee's duties and obligations to the employer.

[Beaunit Mills, Inc. v. Bd. of Review, 43 N.J. Super. 172, 183 (App. Div. 1956), certif. denied, 23 N.J. 579 (1957) (quoting 48 Am. Jur., Social Security, Unemployment Compensation § 38 at 541 (1943)).]

Our administrative codes has codified this principle in N.J.A.C. 12:17-10.2(a), which provides that:

For an act to constitute misconduct, it must be improper, intentional, connected with one's work, malicious, and within the individual's control, and is either a deliberate violation of the employer's rules or a disregard of standards of behavior which the employer has the right to expect of an employee.

"Misconduct" is not to be characterized as "mere mistakes, errors in judgment," "minor but casual or unintentional carelessness or negligence," or "failure of performance as a result of inability or incapacity, inadvertence in isolated instances." Beaunit, supra, 43 N.J. Super. at 182 (quoting Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941); Kempfer, Disqualifications for Voluntary Leaving and Misconduct, 55 Yale L.J. 147, 162-66 (1945)). An employee's repeated and uncompromising refusal to comply with an employer's reasonable rules of employment, however, does constitute misconduct. Broderick v. Bd. of Review, 133 N.J. Super. 30, 33 (App. Div. 1975).

An employer has a right to require an employee to fill out a timesheet honestly and accurately. Inaccurate timesheets would enable an employee to receive wages he was not otherwise entitled. The employer demonstrated that claimant was warned repeatedly, culminating in a final written warning regarding his job status. He was on notice that he had to act according to the letter of the employee handbook. Claimant did not, and the Board determined he was justifiably terminated for misconduct under N.J.S.A. 43:21-5(b).

Claimant's excuse for the inaccurate March 3 timesheet was that he was rushed to fill it out because of the deadline to hand it in to the employer. The timesheet, however, was not due to the employer until March 8 and employees are supposed to fill out their timesheets after each day of work and then hand them in every two weeks. Under such circumstances, we are satisfied that there is sufficient, credible evidence in the record to support the Board's finding that claimant filed a false timesheet, which constituted "misconduct" disqualifying him from benefits under N.J.S.A. 43:21-5(b). This court is not at liberty to substitute its own judgment for the agency's conclusion. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997).

Affirmed.