Revell v. Florida Department of Labor & Employment Security

371 So. 2d 227, 1979 Fla. App. LEXIS 15081
CourtDistrict Court of Appeal of Florida
DecidedMay 25, 1979
DocketNo. MM-245
StatusPublished
Cited by3 cases

This text of 371 So. 2d 227 (Revell v. Florida Department of Labor & Employment Security) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Revell v. Florida Department of Labor & Employment Security, 371 So. 2d 227, 1979 Fla. App. LEXIS 15081 (Fla. Ct. App. 1979).

Opinion

LARRY G. SMITH, Judge.

Appellant appeals from a final order of the Unemployment Appeals Commission1 which upheld the decision of an appeals referee, and denied appellant’s request for [229]*229rehearing to consider new and additional evidence in an unemployment compensation proceeding. We find error in the procedures followed by the appeals referee and approved by the Unemployment Appeals Commission, and therefore reverse.

The factual issue before the administrative tribunal was whether Linda F. Idelson, a former employee of Dr. Clifford Revell, D.D.S., appellant, was discharged from her employment because of pregnancy, or whether she voluntarily left her employment without good cause attributable to her employer. A claims examiner determined that the employee was discharged when she was replaced by a former employee. The doctor duly appealed this decision 2 and the matter was referred to an appeals referee for hearing.3

The first hearing was held in Tallahassee. Appellant appeared and gave sworn testimony, but the claimant did not appear. She was, however, represented by counsel at that hearing who participated and cross-examined appellant. The non-appearance of claimant was explained by the referee at the commencement of the hearing by reciting into the record information apparently conveyed to him by letter from the claimant to the effect that she had moved to a new address, and was then residing in Clear-water, Florida. At the conclusion of appellant’s testimony claimant’s attorney referred to the fact that there appeared to be some “controverted testimony”, and requested that the testimony of claimant be taken in Clearwater before a determination was made. Without ruling on the request for additional testimony, the referee, addressing himself to appellant, observed that “if there is any additional hearing, you will receive a copy of the hearing notice”, and: “Although it is not necessary that you travel to Clearwater for a hearing, if you so desire, you will . . . receive a copy . and tell you the date, time and place if you want to go down to Clearwater for another hearing”.

The appeals referee thereafter gave notice of an additional hearing scheduled for June 2, 1978 in Clearwater, but neither claimant nor appellant appeared. On June 21, 1978 the appeals referee entered his decision reversing the determination of the claims examiner, and holding that the claimant voluntarily left her employment without good cause attributable to her employer.

In the meantime, a letter from claimant to the appeals referee dated June 6, 1978 was finding its way to the appeals referee. In her letter, claimant explained that she was “out of town” and didn’t receive notice in time to attend the hearing,4 and requested another hearing. On June 30, 1978, acting upon claimant’s letter alone, and without notice to appellant, or any opportunity to object or respond, the appeals referee entered an order rescinding and recalling his decision of June 21, 1978.

On July 5, 1978 the appeals referee sent out notice of a third hearing scheduled for July 12, 1978 in Clearwater. A notation informed the parties that the hearing was “to secure claimant’s testimony”, but “all parties may appear and testify if they so desire”. At the Clearwater hearing (which was not attended by appellant) the claimant gave testimony in response to questions put to her by the appeals referee (a different referee than the one who held the Tallahassee hearing). A tape recording of this testimony was then apparently transmitted back to the original referee in Tallahassee and on July 28,1978, he entered his decision reversing his original decision of June 21. The new order held that the claimant was discharged, but not for misconduct connected with her work; and further, that the appellant’s employment record was properly chargeable with unemployment compensation benefit payments made to the claimant.

Appellant’s appeal and request for additional hearing was denied by the Unemploy[230]*230ment Appeals Commission, and appellant then filed his appeal with this court.

Appellant’s first point for reversal argues the absence of substantial competent evidence to support the referee’s finding that the claimant was discharged from her employment. We pretermit consideration of this point because of our conclusion that procedural errors require that this cause be remanded for further hearing.

In Boyd v. Southeastern Telephone Company, 105 So.2d 889 (Fla. 1st DCA 1958), cert. dism. 114 So.2d 1 (Fla.1959), this court adopted the principle that a quasi-judicial body has the power of its own motion or on request to correct or amend an order still under its control without notice or hearing to interested parties under certain conditions, those being as stated in State ex rel. Burr v. Seaboard Air Line Ry., Co., 93 Fla. 104, 111 So. 391 (Fla.1927):

“The law is also well settled that the railroad commission, like a court, may on its own motion or by request correct or amend any order still under its control without notice and hearing to parties interested, provided such parties cannot suffer by reason of the correction or amendment, or if the matters corrected and amended were embraced in testimony taken at a previous hearing.” (111 So. at page 392)

See also Leonard Bros. Transfer & Storage Co. v. Douglass, 159 Fla. 510, 32 So.2d 156 (Fla.1947). In Boyd, the court pointed out, however, that the order with which it was concerned was a temporary order, still clearly under the commission’s control when it entered its amended order so that the proviso clause in the above quoted rule could not be invoked.

The June 21st decision of the appeals referee here became final within ten days after the day of mailing,5 unless, within ten days after mailing further review was initiated in accordance with the statute. Under Section 443.07(4)(c) such review may be initiated by the board of review, on its own motion, or the board may allow an appeal on application filed within the proper time by any party entitled to notice of the referee’s decision. Thus it appears from a careful reading of the statute governing appeals to the appeals referee there is no specific provision for recision or recalling of a final decision by the referee upon his own initiative. The statute provides that his decisions “shall be final” unless properly appealed to the board, or unless the board on its own motion initiates a review of the decision. Neither event occurred here. Unlike the circumstances dealt with in the Boyd case, supra, the order was not temporary, and it indeed appeared that the rights of the appellant did suffer by reason of the cancellation of the prior decision in his favor. It is noted further that the letter from the claimant to the referee which prompted reversal of the June 21 decision was dated June 6. Notice of the decision was mailed to the parties on June 21. Since the letter was dated before the June 21 order was entered a question arises whether the June 6 letter could be considered appropriate to initiate a review pursuant to the requirement that an application for review be filed “within 10 days after the delivery” of notice of the referee’s decision.6

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Related

Hebert v. Unemployment Appeals Commission
677 So. 2d 1333 (District Court of Appeal of Florida, 1996)
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674 So. 2d 195 (District Court of Appeal of Florida, 1996)
Gray v. Florida Department of Labor & Employment Security
375 So. 2d 341 (District Court of Appeal of Florida, 1979)

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Bluebook (online)
371 So. 2d 227, 1979 Fla. App. LEXIS 15081, Counsel Stack Legal Research, https://law.counselstack.com/opinion/revell-v-florida-department-of-labor-employment-security-fladistctapp-1979.