Spaulding v. Florida Indus. Commission, 63-94

• Decision Date: 11 June 1963
• Docket Number: No. 63-94,63-94
• Citation: 154 So.2d 334
• Parties: Bertha SPAULDING, Petitioner, v. FLORIDA INSUSTRIAL COMMISSION and Onny Amon, Inc., Respondents.
• Court: Florida District Court of Appeals

Page 334

154 So.2d 334

Bertha SPAULDING, Petitioner, v. FLORIDA INSUSTRIAL COMMISSION and Onny Amon, Inc., Respondents.

No. 63-94.

District Court of Appeal of Florida, Third District.

June 11, 1963.

Ainslee R. Ferdie, Miami, for petitioner.

Burnis T. Coleman and Lawrence Kanzer, Tallahassee, Meyer M. Brilliant, Miami, for respondents.

Before CARROLL, HORTON and BARKDULL, JJ.

CARROLL, Judge.

By certiorari petitioner seeks review of a decision of the Florida Industrial Commission, Unemployment Compensation Board of Review, affirming an Appeals Referee's decision which denied benefits upon a determination that the petitioner was guilty of misconduct connected with her work within the meaning of the applicable statute. ¹

The facts as found by the Appeals Referee were stated in his report as follows:

'Claimant is fifty-one years of age. Her employment history reflects experience as a grocery supermarket worker. She became employed with employer (-35416) an employer that operates a grocery supermarket, in November 1960. In this employment, appellant did general work which included, after a period of time on the job, cashiering. With respect to appellant's work as a cashier, she was instructed by her employer, on more than one occasion, to ring up all sales immediately and if she was in the process of ringing up a sale for a customer and another customer gave her the exact cost of an item, to take such money and ring it up immediately the sale to the previous customer was concluded. The employer subscribes to a shopping service that checks employees for, among other things, service, courtesy and general attitude. The method of operation of this service is, generally, to have operators make purchases and have another operator observe while such purchases are made. On May 31, 1962, at a time when appellant was on duty as a cashier, this service shopped the employer's store. During this check, at a time when appellant was in the process of ringing up a sale, an operator made a purchase for which the exact price of the item purchased was given to claimant. This was not immediately recorded on the cash register as appellant was in the process of checking out another customer at the time she took the money for this purchase. chase. However, this particular purchase was not recorded on the cash register within ten to fifteen minutes after this transaction was concluded. During this ten to fifteen minute period, appellant had reasonable opportunity to record such sale on the register. This transaction was observed by an operator of the shopping service. When claimant did not, ten to fifteen minutes after accepting exact change for an item purchased while she was busy with another customer, record such transaction on the cash register even though she had reasonable opportunity to do so, the employer was summoned to the store. The employer checked the cash in the register and the cash register tape. The item for which appellant had received the exact change from a customer while she was busy with another customer, did not appear on the tape. Upon checking the cash in the register, the employer determined that it was over, $11 and change, what should be there. The employer questioned claimant as to why the item she had received exact change for was not on the register, but received no explanation. Because of this failure to properly record sales on the cash register, appellant was discharged on May 31, 1962.'

As disclosed by the Referee's order, the disqualification on the above facts was decided on the following reasoning:

'The testimony adduced in this case clearly shows that appellant was dicharged for failing to record sales, in accordance with employer instructions. For a worker to fail to adhere to employer requirements, of which he has been advised, is conduct which is clearly contrary to the type conduct an employer has every right to expect of a worker. Such conduct is tantamount to an intentional disregard of an employer's interest and is misconduct. Accordingly, in this instance, it should be held that claimant was discharged for misconduct connected with her work, within the meaning of this Law.'

We are unable to agree with the conclusion reached by the Referee and the Board that the claimant's conduct as outlined above was 'tantamount to an intentional disregard of her employer's interest' and was 'misconduct connected with her work' within the meaning of the statutory provision involved. In our opinion the construction placed on the statute by the Referee and Board was too narrow. The facts fail by a substantial margin to establish misconduct for which disqualification for benefits is imposed. Bad faith on the part of the checker was not established. The absence of the exact payment item on the cash register tape permits an inference it was not registered, but does not amount to sufficient evidence to establish that the checker appropriated the payment. An inference equally if not more logical would be that someone picked it up during the time the checker was waiting on the other customer. The operative did not observe what happened to the payment after it was made.

In dealing with a case under a similar statute the Supreme Court of Wisconsin had this to say: ²

'* * * If mere mistakes, errors in judgment or in the exercise of discretion, minor and but casual or unintentional carelessness or negligence, and similar minor peccadilloes must be considered to be within the term 'misconduct' and no such element as wantonness, culpability or wilfulness with wrongful intent or evil design is to be included as an essential element in order to constitute misconduct within the intended meaning of the term as used in the statute, then there will be defeated, as to many of the great mass of less capable industrial workers, who are in the lower income brackets and for whose benefit the act was largely designed, the principal purpose and object under the act of alleviating the evils of unemployment by cushioning the shock of a lay-off, which is apt to be most serious to such workers. ...