VARIG BRAZILIAN AIRLINES, PETITIONER,
v.
FLORIDA DEPARTMENT OF COMMERCE, DIVISION OF EMPLOYMENT SECURITY, AND CESAR FONTES, RESPONDENTS

Fla. 3d DCA | 1978-01-31
No. 77-1391
Before PEARSON, NATHAN and HUB-BART, JJ.
354 So. 2d 921 Florida District Court of Appeal, Third District (1978) Caution
Cited by 48 cases

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Holding

The court held that the Industrial Relations Commission departed from essential requirements of law by reversing the appeals referee's decision when substantial evidence supported the finding of employee misconduct disqualifying him from unemployment benefits.


Headnotes

[1] An administrative agency's review of an appeals referee's decision is limited to determining whether the agency acted without or in excess of its jurisdiction or departed…

[2] Misconduct disqualifying an employee from unemployment benefits includes conduct evincing a wilful or wanton disregard of an employer's interests, deliberate violations o…

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Facts & Procedural History

An employee was discharged and initially found eligible for unemployment benefits by a claims examiner. An appeals referee reversed, finding misconduc…

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Opinion of the Court
NATHAN, Judge.

NATHAN, Judge.

By this petition, Varig Brazilian Airlines, an employer, asks this court to issue a writ of certiorari to the Industrial Relations Commission, reversing the Commission’s entry of an order which reversed the decision of an appeals referee who, in turn, had reversed the decision of a claims examiner. The claims examiner had found that claimant, an employee discharged by petitioner Varig, was entitled to unemployment benefits. Varig appealed, and the referee, after a full hearing found claimant had been discharged for misconduct connected with work and therefore was disqualified for benefits. See Section 443.06(1), Florida Statutes (1977).

He also found that Varig’s experience account should be relieved of charges in connection with the claim. Claimant appealed to a review board which considered the matter on the basis of the same evidence which had been before the appeals referee. The review board concluded that claimant’s actions did not constitute misconduct sufficient to disqualify him from benefits and reversed the decision of the referee.

Petitioner Varig contends both that the Commission did not have the authority to reverse the decision of the appeals referee when no new facts were before it and that the decision reached by the Commission was erroneous.

Petitioner’s first contention is without merit. Section 443.07(4)(c), Florida Statutes (1977). Therefore the sole remaining question is whether or not the decision of the Commission comports with the essential requirements of the law, since the scope of our review is limited to a determination of whether the administrative agency acted without or in excess of its jurisdiction, or whether it departed from essential requirements of law in entering the order sought to be reviewed. Castillo v. Florida Department of Commerce, 253 So. 2d 162 (Fla. 2d DCA 1971).

For purposes of the Florida Unemployment Compensation Law, chapter 443, Florida Statutes, the commonly accepted standard of misconduct has been stated repeatedly.

[MJisconduct ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result'.of inability or incapacity, inadvertencies-or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.

Spaulding v. Fiorida Industrial Commission, 154 So. 2d 334 (Fla. 3d DCA 1963); Castillo v. Florida Department of Commerce, supra; Fredericks v. Florida Department of Commerce, Industrial Relations Commission, 323 So. 2d 286 (Fla. 2d DCA 1975).

The record reveals that claimant, who was employed by petitioner as a traffic representative, repeatedly objected, and twice refused, to work at certain stations because he would have had to move baggage a greater distance than at other stations. He repeatedly objected and at least once refused to carry out certain rotational duties which all similarly situated personnel performed in turn. On many occasions he worked cross word puzzles on the job and continued to do so after both verbal requests and written demands that he desist. His employment record shows repeated tardiness and excessive absences (many of them immediately before or after holidays).

His co-workers and superiors testified to numerous instances of loudly argumentative behavior and occasional vulgarities of a most excessive nature, some in front of passengers. He was uncooperative about overtime and was once suspended for refusal to work overtime. Toward the end of his employment he misrouted baggage on four separate occasions.

In sum, we find substantial, competent evidence of repeated instances of behavior evincing intentional and substantial disregard of the employer’s interests sufficient to warrant disqualification from entitlement to unemployment benefits, and hold that the decision of the Industrial Relations Commission did not comport with the essential requirements of the law.

Accordingly, the decision of the Industrial Relations Commission reversing the decision of the appeals referee is quashed, and the cause is remanded with directions to enter an order which disqualifies claimant from unemployment benefits and relieves petitioner’s experience account of charges in connection with the claim.

It is so ordered.


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Citator

Cited By (24 total)

  • Selvin G. Hines v. Dep't OF Labor & Emp. Sec., 455 So. 2d 1104 (Fla. 3d DCA 1984)
    …d 313 (Fla. 3d DCA 1982). Accord Lundy’s Market, Inc. v. Florida Department of Commerce, Division of Employment Security, 373 So. 2d 433 (Fla. 3d DCA 1979); Varig Brazilian Airlines v. Florida Department of Commerce, Division of Employment Security, 354 So. 2d 921 (Fla. 3d DCA 1978); Carlson v. Florida Department of Commerce, 275 So. 2d 24 (Fla. 2d DCA 1973). For purposes of the unemployment compensation statutes, misconduct includes, but is not limited to: (a) Conduct evincing such willful or wanton disreg…
  • David Clark & Assocs., Inc. v. Lowell E. Kennedy, Jr., 390 So. 2d 149 (Fla. 1st DCA 1980)
    …the findings and conclusions of the appeals referee.” With that we find no fault, because it has been held that the UAC has the right to reverse an appeals referee based on evidence in the record. Varig Brazilian Airlines v. Fla. Dept. of Commerce, 354 So. 2d 921 (Fla. 3rd DCA 1978). However, there is a prerequisite to reversal and presumably modification of an appeals refer [*151] ee’s findings and conclusions. It must be determined that there is no competent substantial evidence to support the referee’s de…
  • Benitez v. Girlfriday, Inc., 609 So. 2d 665 (Fla. 3d DCA 1992)
    …employee was not disqualified from unemployment benefits for using vulgar language where such language was not part of a pattern of behavior and did not occur in the presence of others). Compare Varig Brazilian Airlines v. Florida Dept. of Commerce, 354 So. 2d 921 (Fla. 3d DCA 1978) (employee’s repeated use of vulgarities in front of customers, among other things, was sufficient to warrant disqualification from benefits); Claim of Marquez, 490 N.Y.Supp.2d 872, 107 A.D.2d 959 (N.Y.App.Div.1985) (disqualificati…

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