Parker v. Department of Labor and Employment Sec., AR-176

• Decision Date: 21 October 1983
• Docket Number: No. AR-176,AR-176
• Citation: 440 So.2d 438
• Parties: Leonard J. PARKER, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and May Cohens, Appellees.
• Court: Florida District Court of Appeals

Page 438

440 So.2d 438

Leonard J. PARKER, Appellant, v. DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, State of Florida, Unemployment Appeals Commission, and May Cohens, Appellees.

No. AR-176.

District Court of Appeal of Florida First District.

Oct. 21, 1983.

Mark Greenberg, Miami, for appellant.

Robert Whaley, St. Petersburg, for appellees.

NIMMONS, Judge.

Parker appeals from an adverse ruling by the Unemployment Appeals Commission (UAC). We reverse that ruling.

The evidence presented before the appeals referee is summarized as follows. This 58-year-old appellant had been a janitor for May-Cohens department store for about six months when he was arrested on a felony charge apparently arising out of a domestic argument. Parker had no funds to employ an attorney and was unable to obtain release on bail. During his incarceration from August 27 to September 22, 1982, Parker communicated with his employer on three occasions, one by telephone and two by letter. He indicated to his employer that he understood a decision would be made within 21 days as to whether he would be prosecuted. ¹ Although there was testimony that company policy required that employees in such circumstances request a leave of absence and that leave requests were routinely approved for up to 30 days, Parker was never informed of such leave policy. Further, Parker's supervisor told him during his incarceration that his job would be kept open for him.

Parker was released from custody on September 22, 1982, when the pending charges were dropped. Contrary to the referee's findings, infra, there is no evidence in the record to indicate whether Parker was guilty of having committed the offense charged, and he steadfastly denied any guilt. Although the record is not entirely clear as to the circumstances surrounding the dropping of the criminal charge, Parker was apparently released under a "deferred prosecution" agreement with the Office of the State Attorney.

On the day of his release, Parker contacted his supervisor and advised that he was ready to return to work. Approximately one week later, he was notified by letter that he had been replaced, the employer indicating that it had held the position open as long as possible. The testimony indicated that his position had been held open for approximately two weeks after Parker's arrest.

Parker applied for unemployment compensation benefits which were denied on October 27, 1982, by an "adjudicator" pursuant to Section 443.101(1)(a)1, Florida Statutes. Parker appealed and an evidentiary hearing was conducted by the appeals referee at which the above evidence was presented. The decision of the appeals referee adverse to Parker stated:

By the claimant's actions, he was unable to report to work, since he had been placed in jail for an offense he had committed.... It must be held that the claimant, when he failed to report to work after August 27, 1982, voluntarily left his employment and his reason for doing so was not for a good cause which was attributable to the employer.

Subsequently, the UAC affirmed the decision of the appeals referee and this appeal ensued pursuant to Section 443.151(4)(c), Florida Statutes.

Section 443.101(1)(a), Florida Statutes (1981), provides that an individual shall be disqualified for benefits when "he has voluntarily left his employment without good cause attributable to his employer or has been discharged by his employing unit for misconduct connected with his work ...." We conclude that the appeals referee's finding, which was affirmed by the UAC, that Parker voluntarily left his employment without good cause is not supported by competent substantial evidence. We are also of the view that Parker's disqualification cannot be sustained upon the alternative statutory ground of misconduct connected with work.

There will undoubtedly be circumstances where an employee's pre-trial incarceration may reach the point where he ought to be considered as having abandoned his employment. However, as long as the statutory disqualifying criteria are couched in the terms as set forth in Section 443.101(1)(a), supra, it would be at best a strained interpretation of the statute to find that a person in Parker's circumstances had reached that point. ² There was, of course, nothing voluntary about Parker's inability to go to work during the 26-day period. Nothing in the record indicates that Parker committed the offense with which he was charged. Parker kept his employer advised of his status and of his interest in returning to work as soon as possible. Although he apparently would have been granted up to a 30-day leave if requested, Parker was never informed of such policy or practice.

Appellee UAC relies upon a recent case from our sister court in Florida Sheriff's Youth Fund v. Department of Labor and Employment Security, 436 So.2d 332 (Fla. 2nd DCA 1983). There the claimant and her husband were employed to work as "cottage parents" at the Girls Villa in Bartow. The employer required husband and wife teams and informed them of such when they were hired. After claimant's husband was terminated for failure to comply with certain guidelines, claimant was also terminated, although she had been a satisfactory employee, because she was unable to...