ROBERT D. TACHER, APPELLANT,
v.
UNEMPLOYMENT APPEALS COMMISSION AND L. LURIA & SONS, INC., APPELLEES
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Florida appellate court reversed disqualification from unemployment benefits, holding that an employee's failure to conduct daily diamond inspections on two consecutive days, without evidence of intentional misconduct or prior warnings, does not constitute "misconduct" under Florida Statutes § 443.036(26).
A finding of misconduct under Florida Statutes § 443.036(26) requires intentional repeated instances of misconduct or violations of explicit policies after the employee has received warnings, and mere poor judgment or failure to perform a task does not satisfy this standard.
[1] A finding of misconduct under Florida Statutes § 443.036(26) requires intentional repeated instances of misconduct or violations of explicit policies after the employee h…
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Join FLexlaw to unlock all legal intelligence“a finding of misconduct under section 443.036(26) requires intentional repeated instances of misconduct or violations of explicit policies after the employee has received warnings”
Court citing Bulkan v. Florida Unemployment Appeals Comm'n to establish the legal standard for misconduct
Tacher was a manager at a Luria's Department Store who was fired for failing to conduct the required daily inspection of the store's diamond inventory…
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STEVENSON, Judge.
Tacher, a former manager at a Luria’s Department Store, challenges an order of the Unemployment Appeals Commission affirming the appeals referee’s decision to disqualify him from receipt of unemployment benefits on the basis of “misconduct” after he was fired for failing, on two consecutive days, to conduct the “daily inspection” of the store’s inventory of diamonds, as required by the terms of his employment. Two days after Tacher failed to inspect the diamonds, the employer discovered a diamond solitaire had been stolen and replaced with a cubic zirconia. We reverse.
While Tacher may have exhibited poor judgement, we find that the record does not contain competent substantial evidence to support a finding of “misconduct” as the term is defined in section 443.036(26), Florida Statutes (1997). See Bulkan v. Florida Unemployment Appeals Comm’n, 648 So. 2d 846, 848 (Fla. 4th DCA 1995)(holding that a finding of misconduct under section 443.036(26) requires intentional repeated instances of misconduct or violations of explicit policies after the employee has received warnings). The statute should be narrowly construed in favor of the employee, and actions which justify discharge do not necessarily rise to the level of misconduct.
REVERSED.
TAYLOR, J., and BROWN, LUCY CHERNOW, Associate Judge, concur.
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Citator
Cited By
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Jonna S. Reaves v. ANC Rental Corp., 871 So. 2d 1069 (Fla. 3d DCA 2004)…to deprive [appellant] of unemployment benefits.” Hernandez v. Florida Orthopedics, Inc., 861 So. 2d 525, 526 (Fla. 3d DCA 2003)(quoting Santiago v. Home Depot USA, Inc., 716 So. 2d 350 (Fla. 3d DCA 1998)). See Tacher v. Unemployment Appeals Comm., 721 So. 2d 813 (Fla. 4th DCA 1998); Wark v. Home Shopping Club, Inc., 715 So. 2d 323 (Fla. 2d DCA 1998); Hall v. Fla. Unemployment Appeals [*1070] Comm., 700 So. 2d 107 (Fla. 1st DCA 1997). Reversed and remanded.…
Authorities Cited
- Ellington v. State, 648 So. 2d 846 (Fla. 2d DCA 1995)
- Bulkan v. Fla. Unemployment Appeals Comm'n & Terry Ford Co., 648 So. 2d 846 (Fla. 4th DCA 1995)