Tacher v. Unemployment Appeals Commission

District Court of Appeal of Florida

Tacher v. Unemployment Appeals Commission

721 So. 2d 813, 1998 Fla. App. LEXIS 15874, 1998 WL 874876

CourtDistrict Court of Appeal of Florida

DecidedDecember 16, 1998

DocketNo. 97-4254

StatusPublished

Cited by1 cases

This text of 721 So. 2d 813 (Tacher v. Unemployment Appeals Commission) 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.

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Tacher v. Unemployment Appeals Commission, 721 So. 2d 813, 1998 Fla. App. LEXIS 15874, 1998 WL 874876 (Fla. Ct. App. 1998).

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Opinion

STEVENSON, Judge.

Tacher, a former manager at a Luria’s Department Store, challenges an order of the Unemployment Appeals Commission affirming the appeals referee’s decision to disqualify him from receipt of unemployment benefits on the basis of “misconduct” after he was fired for failing, on two consecutive days, to conduct the “daily inspection” of the store’s inventory of diamonds, as required by the terms of his employment. Two days after Tacher failed to inspect the diamonds, the employer discovered a diamond solitaire had been stolen and replaced with a cubic zirco-nia. We reverse.

While Tacher may have exhibited poor judgement, we find that the record does not contain competent substantial evidence to support a finding of “misconduct” as the term is defined in section 443.036(26), Florida Statutes (1997). See Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846, 848 (Fla. 4th DCA 1995)(holding that a finding of misconduct under section 443.036(26) requires intentional repeated instances of misconduct or violations of explicit policies after the employee has received warnings). The statute should be narrowly construed in favor of the employee, and actions which justify discharge do not necessarily rise to the level of misconduct.

REVERSED.

TAYLOR, J., and BROWN, LUCY CHERNOW, Associate Judge, concur.

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STEVENSON, Judge.

Tacher, a former manager at a Luria’s Department Store, challenges an order of the Unemployment Appeals Commission affirming the appeals referee’s decision to disqualify him from receipt of unemployment benefits on the basis of “misconduct” after he was fired for failing, on two consecutive days, to conduct the “daily inspection” of the store’s inventory of diamonds, as required by the terms of his employment. Two days after Tacher failed to inspect the diamonds, the employer discovered a diamond solitaire had been stolen and replaced with a cubic zirco-nia. We reverse.

While Tacher may have exhibited poor judgement, we find that the record does not contain competent substantial evidence to support a finding of “misconduct” as the term is defined in section 443.036(26), Florida Statutes (1997). See Bulkan v. Florida Unemployment Appeals Comm’n, 648 So.2d 846, 848 (Fla. 4th DCA 1995)(holding that a finding of misconduct under section 443.036(26) requires intentional repeated instances of misconduct or violations of explicit policies after the employee has received warnings). The statute should be narrowly construed in favor of the employee, and actions which justify discharge do not necessarily rise to the level of misconduct.

REVERSED.

TAYLOR, J., and BROWN, LUCY CHERNOW, Associate Judge, concur.

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Bluebook (online)

721 So. 2d 813, 1998 Fla. App. LEXIS 15874, 1998 WL 874876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tacher-v-unemployment-appeals-commission-fladistctapp-1998.

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