LUNDY'S MARKET, INC., APPELLANT,
v.
FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, AND MARTA NOGUEIRAS, APPELLEES
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Lundy's Market appeals a Board of Review decision that reversed an appeals referee's finding of misconduct and ordered the employer to pay unemployment benefits for a discharged employee. The court holds that the appeals referee's finding of misconduct was supported by substantial competent evidence and should not have been reversed by the Board.
The court reversed the Board of Review's decision, holding that the appeals referee's finding of misconduct was supported by substantial competent evidence and should not have been reversed. The employee was not entitled to unemployment benefits.
[1] An employee's repeated failure to follow employer instructions constitutes misconduct for the purposes of unemployment benefits.
[2] A Board of Review errs in reversing an appeals referee's findings of misconduct when those findings are supported by substantial competent evidence.
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Join FLexlaw to unlock all legal intelligence“The appeals referee (the fact finder) determined that there was misconduct. His findings, when supported by substantial competent evidence, should not be overturned.”
Establishes the standard of review for fact finder determinations in unemployment benefits cases
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Join FLexlaw to unlock all legal intelligenceMarta Nogueiras was employed at Lundy's Market and was discharged. The employer claimed she committed misconduct by repeatedly operating the cash regi…
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BARKDULL, Judge.
Lundy’s Market, Inc., the employer, appeals a decision of the Board of Review, Department of Commerce, that an employee, Marta Nogueiras, was not discharged on the basis of misconduct and that, therefore, the employer was obligated to pay its pro rata share of unemployment benefits.
Nogueiras filed a claim for unemployment benefits. During the investigation, the employer contended that the discharge was the result of misconduct connected with work but the claims adjudicator determined that there was no clear proof of misconduct and that the employer was liable for its share of the unemployment benefits.
The employer appealed to the appeals referee. Through its manager and part owner, the employer gave sworn testimony that the employee had, on numerous occasions, operated the cash register in violation of instructions; that she would leave change out of the cash register (on the counter, by the cash register) and would leave the cash register drawer open. The employer testified that he had counseled her about this on numerous occasions, and that on one particular occasion she caused the embarrassment of an innocent customer by attaching the incorrect sales slip to a purchase. Nogueiras testified that though the employer had mentioned the fact that she left the drawer open sometimes, he never really talked to her about it and attempted to explain the other matters.
The appeals referee found that the employee had failed to follow instructions, which was a deliberate disregard for the employer’s interest. The referee determined that the discharge was based on misconduct and that the employee was not entitled to benefits. The employee appealed to the Board of Review, which reversed, finding no misconduct and ordered the employer to pay its share of unemployment benefits.
This appeal ensued. The appellant contends1 that the only evidence before the appeals referee demonstrated that the employee repeatedly failed to carry out employer instructions. This constitutes misconduct. Varig Brazilian Airlines v. Florida Department of Commerce, Division of Employment Security, 354 So. 2d 921 (Fla. 3d DCA 1978); § 443.06(1) & (9), Fla. Stat. (1977). The appeals referee (the fact finder) determined that there was misconduct. His findings, when supported by substantial competent evidence, should not be overturned. Since there was substantial evidence, the Board erred in reversing the appeals referee. Varig Brazilian Airlines v. Florida Department of Commerce, Division of Employment Security, supra; General Telephone Co. of Florida v. Board of Review, 356 So. 2d 1357 (Fla. 2d DCA 1978).
Reversed and remanded, with directions to reinstate the order of the appeals referee that the appellee is not entitled to benefits.
Reversed and remanded, with directions.
. Counsel for the appellees did not favor the court with a brief or oral argument. We suggest that if counsel believe the appellant’s position is meritorious they should so indicate, or if they believe the order under review is correct they should favor this court with at least a brief; this is particularly true when a public agency and its counsel are involved.
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Selvin G. Hines v. Dep't OF Labor & Emp. Sec., 455 So. 2d 1104 (Fla. 3d DCA 1984)…n the record. Sanchez v. Department of Labor & Employment Security, State of Florida, Unemployment Appeals Commission, 411 So. 2d 313 (Fla. 3d DCA 1982). Accord Lundy’s Market, Inc. v. Florida Department of Commerce, Division of Employment Security, 373 So. 2d 433 (Fla. 3d DCA 1979); Varig Brazilian Airlines v. Florida Department of Commerce, Division of Employment Security, 354 So. 2d 921 (Fla. 3d DCA 1978); Carlson v. Florida Department of Commerce, 275 So. 2d 24 (Fla. 2d DCA 1973). For purposes of the une…
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Smith v. Eilon Krugman-Kadi & Fla. Unemployment Appeals Comm'n, 547 So. 2d 677 (Fla. 1st DCA 1989)…679] to remain on to give her a chance to comply. She was discharged after stating to the company president that the changes requested of her were unnecessary and that she would not comply. In Lundy’s Market, Inc. v. Florida Department of Commerce, 373 So. 2d 433 (Fla. 3d DCA 1979) the district court found the appeals referee’s finding of “misconduct” was supported by competent, substantial evidence where the claimant repeatedly left change out of cash register and left the register drawer open despite being…
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Perez v. State, 377 So. 2d 806 (Fla. 3d DCA 1979)…s court lacks authority to interfere with an administrative decision based upon an acceptable view of the evidence below. See Florida Industrial Commission v. Ciarlante, 84 So. 2d 1 (Fla.1955); Lundy’s Market, Inc. v. Florida Department of Commerce, 373 So. 2d 433 (Fla. 3d DCA 1979), and cases cited. We simply may not substitute our judgment for the referee’s conclusion that the requirement that Perez temporarily perform two jobs was not such as “would reasonably impel[1] the average able-bodied qualified wor…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Varig Brazilian Airlines v. Fla. Dep't OF Commerce, 354 So. 2d 921 (Fla. 3d DCA 1978)
- Gen. Tel. Co. OF Fla. v. Bd. OF Review, 356 So. 2d 1357 (Fla. 2d DCA 1978)