Goldstein v. Ury Kalai, M.D., P.A., 85-96

• Citation: 480 So.2d 695,11 Fla. L. Weekly 100
• Decision Date: 31 December 1985
• Docket Number: No. 85-96,85-96
• Parties: 11 Fla. L. Weekly 100 Etta M. GOLDSTEIN, Appellant, v. URY KALAI, M.D., P.A., and Unemployment Appeals Commission, Appellees.
• Court: Court of Appeal of Florida (US)

Page 695

480 So.2d 695

11 Fla. L. Weekly 100

Etta M. GOLDSTEIN, Appellant, v. URY KALAI, M.D., P.A., and Unemployment Appeals Commission, Appellees.

No. 85-96.

District Court of Appeal of Florida,

Fourth District.

Dec. 31, 1985.

Christopher J. Schilling of Pucillo & Schilling, West Palm Beach, for appellant.

Geri Atkinson-Hazelton, Tallahassee, for appellee Unemployment Appeals Comn.

HERSEY, Chief Judge.

The Unemployment Appeals Commission affirmed the decision of an appeals referee disqualifying Goldstein from receiving unemployment compensation benefits for the reason that she had been discharged from her employment for an incident which constituted misconduct connected with her work. Goldstein appeals; we reverse on the basis that there is a lack of evidentiary support for the finding that Goldstein's activity constituted misconduct.

Goldstein was employed by Ury Kalai, M.D., in January 1984 and was discharged on July 5, 1984. She testified that her primary duties in Dr. Kalai's office were to perform general clerical work and answer the telephones. The doctor had two other employees, an office manager and a nurse.

Goldstein was initially hired for a full-time position at $300 per week; however, in early June 1984 Dr. Kalai advised all of his employees that "things were very tight" and he was reducing them to a four-day week, with a corresponding cut in pay, beginning July 1. Since Goldstein needed to work full-time, she started looking for another job.

She scheduled and attended an interview in a doctor's office during her lunch hour on Tuesday, June 26. It lasted no more than twenty minutes. She scheduled another appointment, also at a doctor's office, during her lunch hour on Friday, June 29, to fill out an application and possibly see the office manager.

She further testified that she developed a sore throat on Wednesday, June 27, which had become sufficiently severe by Thursday evening to necessitate cancelling a standing social engagement. She submitted an affidavit from a friend to that effect. She called in sick on Friday morning, June 29, because she had a "terrible sore throat." She was entitled to five and one-half sick days and, three months before, had taken one day, also for a sore throat.

She stated that she left her home on June 29 at 11:50 a.m. and returned at 12:30 p.m. Otherwise, she remained at home the entire day. She reported for her scheduled interview at noon and also intended to see her family doctor, whose office was next door to the location of the interview. Upon learning that her family doctor was unavailable, she returned home. Her husband then arranged for a business acquaintance, Dr. Burness, to stop by her house on his way home from the office and examine her. An affidavit signed by Dr. Burness confirmed that he examined claimant at her home on the afternoon of June 29 and found "enlarged nodes and acute redness of her throat."

Goldstein further testified that she took Tylenol and gargled over the weekend and, feeling somewhat better, returned to work on Monday, July 2. Her throat became worse later in the week, but she continued to report to work.

On July 5 Dr. Kalai fired Goldstein. He stated that since she had been the last one hired, she was the first fired, and also that he had found out she was looking for another job. She wrote Dr. Kalai a letter the next day, in part confirming the reasons for her termination, to which he sent a reply on July 11 detailing several areas of dissatisfaction with her work performance.

Goldstein also made an appointment for July 11 with her regular ENT doctor, Dr. Flintoff, the day after she was fired. She submitted a copy of his report at the hearing which verified her illness and the treatment received.

The appeals referee concluded:

It has ... been shown that the claimant was discharged in part by her employer because she failed to report to work on June 29, 1984. Since the claimant was able to leave her home on personal business on that date, and since she was also able to work the following week with the same sore throat, it must be concluded that the claimant's illness on June 29, 1984, was not of a disabiling [sic] nature. An unauthorized absence from work for personal reasons not of a critical nature constitutes misconduct within the meaning of the Florida Unemployment Compensation Law. Because the claimant's discharge occurred in part for a reason constituting misconduct, she should be disqualified from receiving benefits.

The Unemployment Appeals Commission entered an order affirming the decision of the appeals referee.

Section 443.101(1)(a)2, Florida Statutes (1983), provides:

443.101. Disqualification for benefits.--An individual shall be disqualified for benefits:

(1)(a) For the week in which he has voluntarily left his employment without good cause attributable to his employer or in which he has been discharged by his employing unit for misconduct connected with his work, if so found by the division.

The unemployment compensation statute defines "misconduct" as follows:

Misconduct.--"Misconduct" includes, but is not limited to, the following, which shall not be construed in pari materia with each other:

(a) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his employee; or

(b) Carelessness or negligence of such a degree or recurrence as to manifest 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.

§ 443.036(24), Fla.Stat. (1983).

"In determining whether misconduct has occurred which would disqualify a claimant from receiving unemployment compensation benefits, the statute should be liberally construed in favor of the claimant." Langley v. Unemployment Appeals Commission, 444 So.2d 518, 520 (Fla. 1st DCA 1984); see also Woskoff v. Desta Enterprises, Inc., 187 So.2d 101 (Fla. 3d DCA 1966). Also, in reviewing the decision of the appeals referee this court must accept her findings of fact and is limited to a determination of whether her decision is supported by substantial competent evidence. Fort Myers Pump and Supply, Inc. v. Fla. Dept. of Labor and Employment Security, 373 So.2d 429 (Fla. 2d DCA 1979).

The referee in the instant case noted that the employer was dissatisfied with certain aspects of Goldstein's job performance, but found that this did not constitute misconduct, and this part of her findings is not appealed. Misconduct was found, however, because the employee failed to report to work on June...