MARIE J. WARK, APPELLANT,
v.
HOME SHOPPING CLUB, INC. AND FLORIDA UNEMPLOYMENT APPEALS COMMISSION, APPELLEES
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Marie Wark appealed the denial of unemployment compensation benefits after being discharged for excessive absenteeism and tardiness. The court reversed, finding that the employer failed to meet its burden of proving misconduct because it relied solely on inadmissible hearsay documents without witness testimony, and even the admitted instances of absence did not rise to the level of willful misconduct required by statute.
The court held that admission of the hearsay documents was error because they were not supplemented by other evidence and lacked the predicate testimony necessary to qualify as a business record exception. Additionally, the two admitted instances of absence did not evince the willful or wanton disregard required by statute to deny benefits.
[1] Hearsay evidence is admissible in administrative proceedings to supplement or explain other evidence, but is not sufficient in itself to support a finding unless it would…
[2] An employer bears the initial burden of proving employee misconduct to justify the denial of unemployment compensation benefits.
Previewing 2 of 4 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 burden of proof in an employee discharge matter is initially upon the employer to prove misconduct.”
Establishes the initial burden-shifting framework that governs misconduct cases in unemployment benefits proceedings.
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Join FLexlaw to unlock all legal intelligenceHome Shopping Club, Inc. discharged Ms. Wark based on excessive absenteeism and tardiness. Ms. Wark appealed the initial denial of unemployment benefi…
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CASANUEVA, Judge.
Marie J. Wark challenges the denial of unemployment compensation benefits on two grounds.. She claims first that it was improper to. admit certain documents as business records, and second that the evidence of her alleged wrongdoing did not rise to the level of misconduct necessary to support a denial of benefits. We agree with her on both grounds and reverse the denial of unemployment compensation benefits. , .
Ms. Wark’s employer, , the appellee, Home Shopping Club, Inc., discharged Ms. Wark on grounds of excessive absenteeism and tardiness. Ms. Wark appealed the initial denial of unemployment compensation benefits to the referee. Prior to the hearing, the employer submitted documents for consideration.
At the hearing, Ms. Wark objected, to the admission of the documents as business records. The employer did not' appear at the hearing and did not call any witnesses on its behalf. The referee admitted the documents. This was error. The burden of proof in an employee discharge matter is initially upon the employer to prove misconduct. See Donnell v. University Community Hosp., 705 So. 2d 1031 (Fla. 2d DCA 1998). When the employer meets that initial burden, then the employee is required to demonstrate the propriety of her actions. See Donnell; Sheriff of Monroe County v. Unemployment Appeals Comm’n, 490 So. 2d 961 (Fla. 3d DCA 1986); Alterman Transport Lines, Inc. v. Unemployment Appeals Comm’n, 410 So. 2d 568 (Fla. 1st DCA 1982).
The employer here offered no witness testimony or other competent evidence to support its claim of employee misconduct. Although the employer submitted summaries of its attendance records on Ms. Wark, the purpose of these documents was to prove the truth of the information contained therein.
Thus, the documents were clearly hearsay. Hearsay is admissible for limited purposes in an administrative action. It may be admitted to supplement or explain other evidence, but is not sufficient in itself to support a finding unless it would be admissible in a civil action over objection.
Section 120.57(l)(c), Florida Statutes (1997). Because these documents were the only evidence presented of Ms. Wark’s misconduct, they do not supplement or explain other evidence.
Furthermore, because no testimony was presented -at the hearing which could establish the predicate necessary to admit the summaries as a business record exception to the hearsay rule, the documents would not be admissible in a civil trial.
Thus, the admission of the documents was error. See Tallahassee Hous. Authority v. Florida Unemployment Appeals Comm’n, 483 So. 2d 413 (Fla.1986). Due to the employer’s failure to submit competent evidence, it failed to meet its burden to prove misconduct.
Accordingly, Ms. Wark was entitled to unemployment benefits.
Although the first issue is dispositive of this ease, we believe the second issue must also be addressed. Following the erroneous admission of the employer’s summaries, Ms. Wark admitted in her testimony to one instance of unexeused absence and one instance of leaving work early. An employee may be denied unemployment compensation benefits if her' misconduct meets the standard identified in section 443.036(26), Florida Statutes. Here, these two admitted instances do not evince willful or wanton disregard of the employer’s interest so as to support a denial of benefits. See Donnell; Doyle v. Florida Unemployment Appeals Comm’n, 635 So. 2d 1028 (Fla. 2d DCA 1994); Fredericks v. Florida Dep’t of Commerce, Indus. Relations Commission, 323 So. 2d 286 (Fla. 2d DCA 1975); Spaulding v. Florida Indus. Commission, 154 So. 2d 334 (Fla. 3d DCA 1963).
We’ reverse and remand with instructions to award Ms. Wark unemployment benefits.
FRANK, A.C.J., and THREADGILL, J., concur.
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Sunshine Chevrolet Oldsmobile v. Unemployment Appeals Comm'n & Zahid N. Roy, 910 So. 2d 948 (Fla. 2d DCA 2005)…t, however, eliminated entirely. A party seeking to rely on business records as sufficient in themselves to support a finding in an administrative proceeding must make the showing required by section 90.803(6). See Work v. Home Shopping Club, Inc., 715 So. 2d 323, 324 (Fla. 2d DCA 1998) (holding that documentary evidence was not competent in itself to support determination of misconduct “because no testimony was presented at the hearing which could establish the predicate necessary to admit the [documents] a…
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Durall v. Unemployment Appeals Comm'n & BellSouth Commc'n Sys., Inc., 743 So. 2d 166 (Fla. 4th DCA 1999)…he hearing which could establish the predicate necessary to admit the transcript as an exception to the hearsay rule, we find that the appeals referee’s decision was not based on competent, substantial evidence. See Wark v. Home Shopping Club, Inc., 715 So. 2d 323, 324 (Fla. 2d DCA 1998). Moreover, even if the transcript could be considered competent, substantial evidence of Durall’s comments regarding the customer, we also agree with Durall’s second argument that her comments do not evince willful or wanton…
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Glenn v. Unemployment Appeals Comm'n, 731 So. 2d 868 (Fla. 1st DCA 1999)…inability to perform a job — not that any such inability has been proven here — justifies automatic denial of unemployment compensation benefits. That the Department had the burden to prove misconduct is clear. See Wark v. Home Shopping Club, Inc., 715 So. 2d 323, 324 (Fla. 2d DCA 1998); Gilbert v. Department of Corrections, 696 So. 2d 416, 417-18 (Fla. 1st DCA 1997); Gardner v. State, Unemployment Appeals Comm’n, 682 So. 2d 1222, 1224 (Fla. 4th DCA 1996). Here, as in Gilbert v. Department of Corrections, 6…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Spaulding v. Fla. Indus. Comm'n & Onny Amon, Inc., 154 So. 2d 334 (Fla. 3d DCA 1963)
- Doyle v. Fla. Unemployment Appeals Comm'n & Mid-State Fed. Sav. & Loan Ass'n, 635 So. 2d 1028 (Fla. 2d DCA 1994)
- Tallahassee Hous. Auth. v. Fla. Unemployment Appeals Comm'n, 483 So. 2d 413 (Fla. 1986)
- Willis v. State, 323 So. 2d 286 (Fla. 3d DCA 1975)
- Fredericks v. Fla. Dep't OF Commerce, 323 So. 2d 286 (Fla. 2d DCA 1975)
- Albertha M. Donnell v. Univ. Cmty. Hosp. & Fla. Unemployment Appeals Comm'n, 705 So. 2d 1031 (Fla. 2d DCA 1998)
- Sheriff OF Monroe Cnty. v. Unemployment Appeals Comm'n & Alfonso J. Madoz, 490 So. 2d 961 (Fla. 3d DCA 1986)
- Alterman Transp. Lines, Inc. v. Unemployment Appeals Comm'n, 410 So. 2d 568 (Fla. 1st DCA 1982)