SUNCOAST STEEL CORPORATION, APPELLANT,
v.
FLORIDA UNEMPLOYMENT APPEALS COMMISSION, AND DAVID B. CLIFTON, APPELLEES
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Suncoast Steel appeals a Florida Unemployment Appeals Commission (UAC) decision awarding unemployment benefits to David Clifton despite his termination for excessive absenteeism. The court reversed the UAC, holding that substantial competent evidence of unauthorized absenteeism supported the referee's denial of benefits.
The court held that Clifton's own testimony, supplemented by the personnel attendance record, established sufficient evidence of excessive unauthorized absenteeism. The UAC erred in reversing the referee's decision because substantial competent evidence supported the finding that Clifton engaged in misconduct under the unemployment statute and failed to rebut the presumption against him.
[1] Hearsay evidence, standing alone, is insufficient to support a finding in an administrative hearing.
[2] An administrative agency may not substitute its judgment for that of a referee when the referee's findings are supported by substantial competent evidence.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While it is true that hearsay evidence, standing alone, is insufficient in an administrative hearing, we find that Clifton's own testimony establishes a sufficient record of absenteeism, as supplemented by the personnel attendance record.”
Establishes that while hearsay alone is inadequate, competent evidence from other sources can supplement it to create a sufficient record
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Join FLexlaw to unlock all legal intelligenceClifton was terminated for excessive absenteeism. Between January and June 1987, Clifton was absent nineteen days without permission. At the unemploym…
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CAMPBELL, Chief Judge.
Suncoast Steel challenges the Florida Unemployment Appeals Commission (UAC) order that found the claimant, Clifton, entitled to benefits. We agree with Suncoast Steel*that the commission’s order is contrary to the law and the facts as found by the referee and supported by competent evidence.
The UAC reversed the referee; finding that the evidence of Clifton’s absenteeism was based on inadmissible hearsay. § 120.58(l)(a), Fla.Stat. (1987); Fla.Admin. Code Rule 38E-5.024(3)(d). The referee had denied benefits to Clifton based on the testimony of Clifton’s shop supervisor (Moore), a personnel record and Clifton’s own testimony. The UAC apparently found that Moore’s testimony regarding the personnel attendance record was inadmissible hearsay because Moore was not the proper custodian of the records.
While it is true that hearsay evidence, standing alone, is insufficient in an administrative hearing, we find that Clifton’s own testimony establishes a sufficient record of absenteeism, as supplemented by the personnel attendance record.
At the hearing, Clifton attempted to explain the nineteen days of absence from January through June of 1987, but could only explain, at most, seven days. He did not deny that he had been absent for nineteen days without permission.
Further, the personnel attendance record was entered without objection so that even if Moore was not competent to testify about it, the personnel record spoke for itself and served to supplement Clifton’s testimony. § 120.58(l)(a). Moreover, Moore testified that he was personally aware of eighteen instances of absenteeism and numerous instances of tardiness that occurred in the six months preceding Clifton’s termination.
Because the record does contain substantial competent evidence of excessive unauthorized absenteeism and Clifton was unable to rebut the presumption that this was misconduct under section 443.036(25), Florida Statutes (1987) (Tallahassee Housing Authority v. Florida Unemployment Appeals Commission, 483 So. 2d 413 (Fla. 1986)), the UAC erred when it substituted its judgment for that of the referee. CF Industries, Inc. v. Long, 364 So. 2d 864 (Fla. 2d DCA 1978). We therefore reverse the order of the UAC and hold that Clifton is not entitled to benefits and direct that the order of the referee be reinstated.
LEHAN and HALL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Doyle v. Fla. Unemployment Appeals Comm'n & Mid-State Fed. Sav. & Loan Ass'n, 635 So. 2d 1028 (Fla. 2d DCA 1994)…court cannot consider documents not made part of the record). We have also reviewed the testimony of Doyle to determine if it establishes miseon-duct on her part pursuant to the statute. Suncoast Steel Corp. v. Florida Unemployment Appeals Comm’n, 532 So. 2d 10 (Fla. 2d DCA 1988). We find it does not. At most, Doyle’s testimony demonstrates “inefficiency and a failure to perform her work with that degree of exactness and efficiency which the employer may desire or demand.” Spauld-ing v. Florida Industrial…
Authorities Cited
- Tallahassee Hous. Auth. v. Fla. Unemployment Appeals Comm'n, 483 So. 2d 413 (Fla. 1986)
- C. F. Indus., Inc. v. Long, 364 So. 2d 864 (Fla. 2d DCA 1978)