WILLIAM C. BYRUM, APPELLANT,
v.
UNEMPLOYMENT APPEALS COMMISSION AND VIRTOM CORP. OF FLORIDA, INC., APPELLEES

Fla. 2d DCA | 2006-02-10
No. 2D05-1393
SALCINES and CANADY, JJ., Concur.
920 So. 2d 184 Florida District Court of Appeal, Second District (2006) Positive Treatment
Cited by 2 cases

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Synopsis

William Byrum was denied unemployment benefits by the Unemployment Appeals Commission based on a finding that his excessive absenteeism constituted misconduct. The court reversed, holding that the employer failed to present competent, substantial evidence that Byrum's absences were unauthorized, and that a single absence due to irresponsible behavior does not constitute misconduct supporting benefit denial.


Holding

The court held that the employer failed to present evidence that nine of the ten absences were unauthorized, and therefore there was no competent, substantial evidence of misconduct. Additionally, a single absence due to irresponsible behavior does not constitute misconduct supporting denial of benefits.


Headnotes

[1] Excessive unauthorized absenteeism may constitute misconduct supporting a denial of unemployment compensation benefits.

[2] A finding of misconduct disqualifying an individual from unemployment benefits requires competent, substantial evidence that absences were unauthorized.

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Key Quotes

“excessive unauthorized absenteeism may constitute misconduct supporting a denial of unemployment compensation benefits”

Establishes the legal standard that unauthorized status is required for misconduct finding

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Facts & Procedural History

Byrum was employed by Virtom Corporation beginning in July 1999 and was discharged on May 28, 2004, for excessive absenteeism. After a February 13, 20…

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Opinion of the Court
ALTENBERND, Judge.

ALTENBERND, Judge.

William C. Byrum appeals an order entered by the Unemployment Appeals Commission affirming an appeals referee’s determination that Mr. Byrum was disqualified from receiving unemployment benefits because his excessive absences amounted to misconduct. See § 443.036(29), Fla. Stat. (2004). Because there was no competent, substantial evidence that Mr. Byrum’s absences, other than one, were unauthorized, we reverse.

Mr. Byrum was employed by Virtom Corporation in July 1999. He was discharged on May 28, 2004, for excessive absenteeism. According to the employer, Mr. Byrum was warned on February 13, 2004, that his absenteeism was excessive and his attendance needed to improve. The employer did not provide any history of Mr. Byrum’s absences prior to February 13, but explained that during the following three months Mr. Byrum was absent from work ten days on various dates. The testimony was undisputed that on eight of these days — March 24, 25, and 26, April 1 and 2, and May 17 and 24, Mr. Byrum, who was almost sixty years of age, was absent due to serious illness. On one of the remaining days, Mr. Byrum was absent when he had to move from his home based on an eviction.

There was no testimony that these absences were unauthorized or that they were in violation of a company policy. See Mason v. Load King Mfg. Co., 758 So. 2d 649, 654-55 (Fla.2000) (holding that excessive unauthorized absenteeism may constitute misconduct supporting a denial of unemployment compensation benefits). Because Virtom Corporation failed to present evidence that these nine absences were unauthorized, there was no competent, substantial evidence to support a finding of misconduct. See Hamilton v. Unemployment Appeals Comm’n, 880 So. 2d 1284, 1286-87 (Fla. 2d DCA 2004); Franklin v. Unemployment Appeals Comm’n, 841 So. 2d 682, 685 (Fla. 2d DCA 2003); Howell v. Fla. Unemployment Appeals Comm’n, 802 So. 2d 1177, 1179 (Fla. 2d DCA 2001).

There was evidence that Mr. By-rum was absent from work on one occasion due solely to irresponsible behavior. Although “excessive unauthorized absenteeism” justifies the denial of benefits, a single absence does not. Forte v. Fla. Unemployment Appeals, 899 So. 2d 1159, 1160 (Fla. 3d DCA 2005) (citing Mason, 758 So. 2d at 654). An isolated incident of poor judgment should not usually constitute misconduct, even if the incident is a valid ground for termination. Id. (citing Vilar v. Unemployment Appeals Comm’n, 889 So. 2d 933, 935 (Fla. 2d DCA 2004)).

Virtom Corporation had every right to terminate Mr. Byrum’s employment under these circumstances, but the employer did not establish that Mr. Byrum’s absences amounted to misconduct under section 443.036(29). We therefore reverse and remand with instructions to award Mr. By-rum unemployment compensation benefits.

Reversed and remanded with instructions.

SALCINES and CANADY, JJ., Concur.


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Citator

Cited By

  • …petent substantial evidence and the denial of benefits must be reversed. See Forte, 899 So. 2d at 1160-61; Borrego v. Fla. Unemployment Appeals Comm’n, 884 So. 2d 520 (Fla. 3d DCA 2004); Vega, 833 So. 2d at 310; Byrum v. Unemployment Appeals Comm’n, 920 So. 2d 184, 185 (Fla. 2d DCA 2006). Reversed and remanded.…

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