The decision arrived today. Here it is :
Issues Involved
SEPARATION : Whether the claimant was discharged for misconduct connected with work or voluntarily left work without good cause as defined by statute blah blah...........
CHARGES TO EMPLOYER RECORD: Whether the benefit payments made to the claimant shall be charged to the employer record pursuant to section blah blah ..........
Finding of Fact: The claimant worked for the employer as a XXXXXX from XXXXX to XXXXX when he was discharged for allegedly manipulating the phone system in order to enhance his statistics falsely.
The claimant did not manipulate the phone system.
Conclusions of Law : As of June 27 2011 Florida Statue blah blah defines misconduct connected with work as , but is not limited to the following which may or may not be construed as pari materia with each other.
a) Concious disregard of employer interests found to be deliberate blah blah
b) carless or negligence to a degree of substantial disregard of employer interests blah blah
c) chronic absenteeism
d) willful and deliberate of a state regulation in connection with the employers responsibility or licence.
e) a violation of employer rule unless the claimant can show he was
i) not aware or could not reasonable be aware of the rule or its requirements
ii) rule was not lawful
iii) rule was not fairly applied .
The record reflects the claimant wad discharged. When a claimant has been discharged from his employment, it is incumbent upon the employer to prove that he was discharged for misconduct connected with his work before benefits can be denied. In order to do so , the employer must show by a preponderance of competent evidence that the claimant engaged in the misconduct , and it violated his duties and obligations to the employer.
(Judge now cites case law supporting the need for above evidence under Florida Statutes . Case law used was supreme court issued in 1987)
The employer has not issued evidence to establish the claimant was discharged for misconduct of any kind. The employer presented evidence regarding the calls that she claims led to the recommendation of dismissal which was hearsay. The employer presents no firsthand evidence any calls took place. The employer further provides no first hand evidence the claimant committed phone manipulation.
The employer testifies to what she heard on the recording of phone calls but does not provide any actual transcripts or tape recordings of the phone calls themselves. The best evidence rule, set forth in section 90.952 Florida statutes provides that an original recording or transcript or photograph is required in order to prove the contents of the writing or recordings or photograph.
Testimony about the contents of a recording is hearsay.
Hearsay may be used to support or supplement finding of fact under sections blah blah...........
In the instant case, the claimants first hand testimony that he did not manipulate the phone system is deemed to be more credible than the hearsay testimony of the employer. Therefore the employers hearsay cannot be used to support any finding of fact.
Additionally , even if the employers testimony regarding the content of the calls was deemed credible, the employer does not provide any evidence the calls were the claimants and not another employees. Further to this , even if the calls were proven to be the claimants,
the content of the calls does not constitute phone manipulation as stated in the finding of fact.
Discounting the hearsay evidence and the above considerations, there remains no competent, substantial evidence in the record establishing misconduct by the employee . Therefore, the claimant is not subject to disqualification.
Decision: The determination dated July 30 2012, disqualifying the claimant and relieving the employer's account of charges, is reversed.
Wheeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee eeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee............... .....
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