ALTERMAN TRANSPORT LINES, INC., EMPLOYER/APPELLANT,
v.
UNEMPLOYMENT APPEALS COMMISSION, APPELLEE, AND JERRY K. RAY, CLAIMANT/APPELLEE
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An employer appealed an unemployment commission decision that granted benefits to a terminated manager who had used company facilities and employees for personal projects. The court reversed, holding that the commission must defer to the referee's factual findings when supported by competent, substantial evidence, and that the employee failed to meet his burden of proving the propriety of his misconduct.
The court held that the commission must honor the referee's findings of fact when founded on competent, substantial evidence and may not second-guess the referee's factual determinations. Once an employer establishes prima facie evidence of misconduct, the burden shifts to the employee to prove the propriety of that conduct, and the commission cannot reweigh credibility or reconsider facts on a lifeless record.
[1] An employee discharged for misconduct connected with work is ineligible for unemployment benefits.
[2] An employee's use of company facilities, materials, and on-the-clock employees for personal projects constitutes misconduct connected with work.
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Join FLexlaw to unlock all legal intelligence“We reverse because without taking further evidence as provided in Section 443.-07(4)(c), Florida Statutes (1979), the commission must honor the referee's findings of fact if they are founded on competent, substantial evidence.”
Establishes the standard of review requiring deference to referee factual findings supported by competent substantial evidence.
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Join FLexlaw to unlock all legal intelligenceRay, a manager at Alterman Transport Lines' Jacksonville terminal, was fired after using company facilities, materials, and on-the-clock employees for…
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JOANOS, Judge.
Alterman Transport Lines appeals from a commission order that overturned the findings of an appeals referee and instead found that Ray is entitled to unemployment benefits. We reverse.
Ray, manager at the company’s Jacksonville truck terminal, was fired, and he applied for unemployment benefits. At hearing before the referee, Sidney Alterman testified that Ray had used company facilities and employees for his personal business. Ray responded that any such work was done by employees who had their own equipment and were “off the clock.” However, Ray admitted that on at least one occasion he directed employees, working on company time, to load decorator stone to be used on his house. He did not comment on testimony by Alternan that he. had once ordered a company lease driver to pick up a load of wood from a lumber yard and have it delivered to a home he was building. In general, Ray defended his behavior on the ground that past terminal managers had conducted similar activities, and he had learned from them.
The referee found Ray ineligible for benefits because he was discharged for misconduct connected with his work.1 He reached this decision after finding that Ray had used company facilities, materials and on-the-clock employees to work on his personal projects. The referee concluded that because a reasonable person would have sought permission for such activities, Ray had demonstrated a “substantial disregard of the employer’s interests and of his duties and obligations to his employer.”2
Ray then appealed to the commission, which reversed even though it agreed that Ray had utilized company employees on his personal projects at the job site. The commission held that Ray’s activities could not constitute misconduct within the meaning of the statute3 because there was insufficient evidence that the conduct actually harmed the employer or that Ray was aware that his activities were contrary to Alterman’s rules or policies.
We reverse because without taking further evidence as provided in Section 443.-07(4)(c), Florida Statutes (1979), the commission must honor the referee’s findings of fact if they are founded on competent, substantial evidence. See Catholic Social Services v. Florida Dept. of Commerce, Board of Review, 365 So. 2d 427 (Fla. 1st DCA 1978). When, as here, an employer establishes pri-ma facie evidence of misconduct, the burden shifts to the employee to come forward with proof of the propriety of that conduct. Upon viewing a lifeless record, neither we nor the commission may second-guess the fact-finding wisdom of the referee in determining whether Ray met that burden. See Florida Dept. of Professional Regulation v. Wagner, 405 So. 2d 471 (Fla. 1st DCA 1981).
Accordingly, the commission’s order is vacated with instructions that the referee’s findings and conclusions be reinstated by the commission.
McCORD and SHIVERS, JJ., concur. . F.S. 443.06(1) (1979).
. F.S. 443.06(9)(b) (1979).
.In its order, the commission applied the 1980 amendments to Section 443 even though Ray was fired before their effective date. This variance is immaterial, however, because the relevant corresponding passages are identical.
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Etta M. Goldstein v. URY Kalai, M.D., P.A., 480 So. 2d 695 (Fla. 4th DCA 1985)…sion, 463 So. 2d 1216 (Fla. 1st DCA 1985) (employer’s burden to show absence unexcusable not met where no indication of criteria used by employer in approving or disapproving leave); Alterman Transport Lines, Inc. v. Unemployment Appeals Commission, 410 So. 2d 568 (Fla. 1st DCA 1982) (employer had burden to show misconduct). In other words, the referee’s implicit finding that Goldstein could only report out sick if her illness was so disabling that she was incapable of leaving her house or of coming in to wor…
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Sheriff OF Monroe Cnty. v. Unemployment Appeals Comm'n & Alfonso J. Madoz, 490 So. 2d 961 (Fla. 3d DCA 1986)…is unclear who filed the appeal in Woskoff and Spaulding. None of those cases dealt with the issue of the burden of proof per se. The only case that did discuss the burden of proof, Alterman Transport Lines, Inc. v. Unemployment Appeals Commission, 410 So. 2d 568 (Fla. 1st DCA 1982), states that the employer has the burden of proving misconduct. However, in Alterman, as in Woskoff and Spauld-ing, there is nothing to indicate which party filed the appeal. The case law in existence at the time of the hearing w…1 / 2
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Dade Cnty. Police Benevolent Ass'n v. City OF Homestead & the Pub. Emps. Relations Comm'n, 444 So. 2d 465 (Fla. 3d DCA 1984)…s); Co-Tran, Fla. Transit Management, Inc. v. Goodman, 415 So. 2d 155 (Fla. 4th DCA 1982) (whether bus driver's discharge from employment was for misconduct connected with the employment); Alterman Transp. Lines, Inc. v. Unemployment Appeals Comm'n, 410 So. 2d 568 (Fla. 1st DCA 1982) (whether employee used company facilities and employees for personal business and whether such misconduct was connected with his employment); Forkey & Kirsch, P.A. v. Unemployment Appeals Comm’n, 407 So. 2d 319 (Fla. 4th DCA 1981…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Catholic Soc. Servs. v. State of Fla. Dep't OF Commerce, 365 So. 2d 427 (Fla. 1st DCA 1978)
- Dep't OF Prof'l Reg. v. Wagner, 405 So. 2d 471 (Fla. 1st DCA 1981)