Opinion
No. 78-1994/T4-207.
November 12, 1980.
Appeal from the Bureau of Unemployment Compensation.
Wendell J. Kiser and Robert C. Barrett of Akerman, Senterfitt Eidson, Orlando, for appellant.
Kenneth H. Hart, Jr., Tallahassee, and Ollie Evans, Miami, for appellee, Florida Dept. of Commerce, Division of Employment Security.
Gladys O. Doyle, pro se.
The employee, Gladys Doyle, was notified on a Thursday afternoon that her employer, Sandra Fashions, Inc., wanted her to report for work the next day, Friday. She believed that she was entitled to a 24-hour notice under her union contract and, since she had an appointment to have her hair done, she declined to go to work on Friday.
The claims representative found that Doyle had declined to come to work on Friday due to non-compelling personal reasons and, therefore, was ineligible for unemployment compensation benefits for the week that included that Friday. On appeal, the appeals referee found that Doyle had been unavailable for work for only one day and that it was the policy of the Bureau of Unemployment Compensation that no penalty would be imposed if only one day of availability was involved. The Board of Review affirmed the referee, and the employer now brings the Board's decision before this court via a misnomered petition for certiorari, which is treated here as an appeal filed pursuant to Rules 9.030(b)(1)(C), and 9.110(a)(2), Florida Rules of Appellate Procedure. See Fla.R.App.P. 9.040(c).
Section 443.05(1)(c), Florida Statutes, provides that an unemployed individual is eligible to receive benefits for a particular week if he is able to work and available for work during that week. With regard to being available the courts have stated that:
One seeking employment must assume the responsibility of managing his personal affairs in such a manner as will enable him to reasonably comply with the conditions of the work he seeks. If he fails to discharge this responsibility, it cannot be said that he is available for work in the usual commercial sense.McCormick v. Henry Koerber, Inc., 252 So.2d 599, 602 (Fla. 1st DCA 1971); Andrus v. Fla. Dept. of Labor and Employment Security, 379 So.2d 468, 470 (Fla. 4th DCA 1980).
Doyle's belief that her union contract entitled her to 24-hour notice cannot alter state law in regard to unemployment compensation; such a condition, if so applied, would give a union employee a favored status over a non-union employee. If so construed, the unemployment compensation statute would be discriminatory and probably unconstitutional. Auchter Co. v. Fla. Dept. of Commerce, 304 So.2d 487 (Fla. 1st DCA 1975), affirmed sub nom., Adams v. Auchter Co., 339 So.2d 623 (Fla. 1976); Norman v. Employment Security Agency, 83 Idaho 1, 356 P.2d 913 (1960).
There does not appear to be a legal basis for the appeals referee's rationale that Doyle was unavailable for work for only one day. Section 443.06(2), Florida Statutes provides that an individual shall be disqualified for benefits if the individual has failed without good cause to accept suitable work when offered to him. The statute make no exception for one day. In addition, the Bureau of Unemployment Compensation Manual provides that:
If at any time a worker is not available for one day only of the calendar or claim week, he may be considered available for the entire week and eligible to sign for a compensable claim. However, if an actual job is available and he could have worked on that day, he is considered unavailable for the entire week. If a claimant is not available for more than one day during a calendar or claim week, he is considered unavailable for all cases for the entire week.
It appears that the finding of fact of the claims representative that Doyle was unavailable for work due to a non-compelling personal reason is supported by competent, substantial evidence. However, the decision of the appeals referee that an employee is entitled to be unavailable for work for any reason he chooses for one day is erroneous as a matter of law.
REVERSED.
ORFINGER, J., concurs.
SHARP, J., dissents with opinion.
I respectfully dissent. There is evidence in the record to sustain the decision of the appeals referee and Board of Review, and since it is the agency statutorily entrusted with the interpretation of the unemployment compensation laws, we should affirm its decision.
Board of Cty. Com'rs. v. Fla. Dpt. of Commerce, 370 So.2d 1209 (Fla.2d DCA 1979); C.F. Industries, Inc. v. Long, 364 So.2d 864 (Fla.2d DCA 1978).
The majority opinion ignores the evidence in the record which shows that neither the employee nor the employer had in the past adhered to the strict letter of the unemployment compensation laws. Doyle was employed by her employer over an eight year period. She was frequently laid off and frequently recalled because the employer's work volume fluctuated in the normal course of business. When she was laid off, Doyle never sought other employment knowing she would shortly be recalled for work.
During these layoffs, it was the practice of the employer (whether required by a union contract or not) to give Doyle at least 24 hours recall notice before requiring her to return to work. Sometimes Doyle returned with the shorter notice; sometimes she did not. Never before had her unemployment compensation claims been challenged by her employer because she failed to return to work for a "non-compelling personal reason" when given less than 24 hours notice. Suddenly and without advance warning, the employer changed this practice, and Doyle now must forfeit one week's unemployment compensation for one day's work. She did return to work the following Monday.
Unemployment compensation laws are remedial and humanitarian, and they should be liberally and broadly construed. Williams v. State Dept. of Commerce, 260 So.2d 233 (Fla. 1st DCA), cert. denied, 264 So.2d 427 (1972). Doyle's one day delay in returning to work seems no more egregious or "non compelling" than the painter who thought it was going to rain and helped his friend move to Georgia instead of going to work. Williams. In this case, unlike Williams, the Board could also have found the employer contributed to Doyle's failure to come to work on Friday, and it should be estopped to dispute her claim.
See generally Alderman v. Stevens, 189 So.2d 168 (Fla.2d DCA 1966); Davis v. Evans, 132 So.2d 476 (Fla. 1st DCA), cert. denied, 136 So.2d 348 (1961).