ELLEN B. HUBBARD, APPELLANT,
v.
BEST TERMITE & PEST CONTROL AND THE FLORIDA UNEMPLOYMENT APPEALS COMMISSION, APPELLEES
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Ellen Hubbard was terminated by her employer Best Termite for insubordination after calling in sick to attend her son's golf tournament. The Unemployment Appeals Commission denied her unemployment benefits, finding job misconduct. The court reversed, holding that the record lacked competent, substantial evidence of misconduct and that Hubbard's actions constituted only a good faith error in judgment.
The court reversed the Unemployment Appeals Commission's order, holding that Hubbard committed only a good faith error in judgment, not misconduct under Florida law, because the record lacked competent, substantial evidence that she deliberately intended to deceive her employer about her illness.
[1] An employee's request for vacation time to attend a child's sporting event, even if denied, does not constitute misconduct disqualifying them from unemployment benefits w…
[2] A finding of insubordination for unemployment compensation purposes requires competent, substantial evidence, such as direct testimony or affidavits from witnesses who he…
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The appeals referee specifically found that Hubbard had told other employees she would call in sick on the day in question. This finding is simply not supported by competent, substantial evidence.”
Establishes that the lower court's key finding of misconduct lacked evidentiary support, the critical flaw in the case.
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Join FLexlaw to unlock all legal intelligenceHubbard requested vacation to attend her son's golf tournament, which her supervisor denied. The next day, she called in sick complaining of arm pain …
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RYDER, Judge.
Ellen Hubbard challenges an order of the Unemployment Appeals Commission that disqualifies her from receiving unemployment compensation benefits because of job misconduct. We reverse because the record contains no competent, substantial evidence of misconduct.
Hubbard’s employer, Best Termite, dismissed her for insubordination. Hubbard appealed the Division of Unemployment Compensation’s determination that she was not entitled to benefits.
The evidence before the appeals referee showed that Hubbard had asked for a day of vacation in order to attend a golf tournament in which her son was competing. Her supervisor denied her request. On the day in question, Hubbard called in sick, complaining of pain in her arm. Later that afternoon, she attended the golf match. The employer contended that Hubbard had told coworkers she intended to feign illness and take the day off in defiance of her supervisor’s order. Best Termite knew Hubbard had been under a doctor’s care for arm pain for several months. When pain occurred, her doctor had instructed her to apply compresses and keep the arm immobile. Mrs. Hubbard testified that her pain would have prevented her from performing her office duties both in the morning when she was at home and, to a lesser extent, in the afternoon when she attended the tournament. Her husband drove her to the golf match and she kept her arm immobilized in a sling. A week after her termination, her doctor determined she had a large tumor in her arm, which was surgically removed several weeks later. The appeals referee specifically found that Hubbard had told other employees she would call in sick on the day in question. This finding is simply not supported by competent, substantial evidence. Hubbard did not admit the statement. The coworkers to whom Hubbard allegedly made the statement did not testify, nor did they submit affidavits. The only evidence on this point was from the employer’s representative who did not have personal knowledge. Without competent evidence to support a finding of insubordination, Mrs. Hubbard’s actions do not rise to the level of misconduct defined in section 443.036(26), Florida Statutes (1991).
While Mrs. Hubbard’s decision to attend her son’s golf match while on a sick day was unwise, she did not have a history of abusing the company’s sick leave policy.
The evidence showed she had a continuing problem with arm pain that resulted in surgery.
We hold that she committed one good faith error in judgment, which does not disqualify her from unemployment benefits under section 443.101(l)(a), Florida Statutes (1991). See Seger v. Danner Constr. Co., 611 So. 2d 82 (Fla. 2d DCA 1992); Goldstein v. Ury Kalai, M.D., P.A., 480 So. 2d 695 (Fla. 4th DCA 1985).
Reversed.
FRANK, C.J., and PARKER, J., concur.
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Pascarelli v. Unemployment Appeals Comm'n, 664 So. 2d 1089 (Fla. 5th DCA 1995)…kan v. Florida Unemployment Appeals Com’n, 648 So. 2d 846 (Fla. 4th DCA 1995) (a mechanic’s failure to comply with a new policy of completing work orders for repairs was an isolated incident of poor judgment); Hubbard v. Best Termite & Pest Control, 627 So. 2d 581 (Fla. 2d DCA 1993) (employee’s sick day after employer refused vacation day constituted poor judgment not misconduct); Rogers v. Florida Unemployment Appeals Com’n, 597 So. 2d 382 (Fla. 2d DCA 1992) (a pre-school teacher’s leaving a classroom of chi…
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Gilbert v. Dep't OF Corr. & Fla. Unemployment Appeals Comm'n, 696 So. 2d 416 (Fla. 1st DCA 1997)…xt, the Unemployment Compensation Law defines “good cause” for leaving a job to include “illness or disability of the individual requiring separation from his work.” § 443.101(l)(a)l., Fla.Stat. (1995). [*419] Hubbard v. Best Termite & Pest Control, 627 So. 2d 581 (Fla. 2d DCA 1993); Seger v. Danner Constr. Co., Inc., 611 So. 2d 82 (Fla. 2d DCA 1992). See Krulla v. Barnett Bank, 629 So. 2d 1005, 1007 (Fla. 4th DCA 1993)(“[T]he real issue is not whether blame can be assigned to the employer for the employee’s…
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Amaury P. Betancourt, Jr. v. SUN Bank Miami, N.A., 672 So. 2d 37 (Fla. 3d DCA 1996)…t); Bulkan v. Unemployment Appeals Comm’n, 648 So. 2d 846 (Fla. 4th DCA 1995) (a mechanic’s failure to comply with a new policy of completing work orders for repairs was an isolated incident of poor judgment); Hubbard v. Best Termite & Pest Control, 627 So. 2d 581 (Fla. 2d DCA 1993) (employee’s sick day after employer refused vacation day constituted poor judgment not misconduct); Rogers v. Unemployment Appeals Comm’n, 597 So. 2d 382 (Fla. 2d DCA 1992) (a pre-school teacher’s leaving a classroom of children u…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Etta M. Goldstein v. URY Kalai, M.D., P.A., 480 So. 2d 695 (Fla. 4th DCA 1985)
- Seger v. Danner Constr. Co., Inc., 611 So. 2d 82 (Fla. 2d DCA 1992)