Third District Court of Appeal State of Florida, July Term, A.D. 2012

Transcription

1 Third District Court of Appeal State of Florida, July Term, A.D Opinion filed November 21, Not final until disposition of timely filed motion for rehearing. No. 3D Lower Tribunal No Raul A. Guillen, Appellant, vs. Reemployment Assistance Appeals Commission and Republic Services of Florida, Appellees. An administrative appeal from the Reemployment Assistance Appeals Commission. Jason H. Clark, (West Palm Beach), for appellant. Louis A. Gutierrez, (Tallahassee), Senior Attorney for appellee, Reemployment Assistance Appeals Commission. Before WELLS, C.J., and LAGOA and SALTER, JJ. WELLS, Chief Judge. We affirm the final order entered below by the Unemployment Appeals Commission, now known as the Reemployment Assistance Appeals Commission,

2 see , Fla. Stat. (2012), 1 disqualifying Raul A. Guillen from receiving unemployment compensation benefits based on a determination that he had voluntarily left his employment without good cause attributable to his employer. We do so because this determination is fully supported by the record and competent, substantial evidence. The testimony adduced below, while in part contested, was that Guillen was hired in October 2008 by Republic Services of Florida as a recycling truck driver. During most of his tenure at Republic, Guillen and a helper had been assigned to his truck. Shortly before Guillen s employment terminated, Republic changed its staffing, eliminating the helpers assigned to each truck and altering the route served by each truck. When Guillen was advised of these changes, he refused to drive his route and left the workplace. When he subsequently failed to appear to drive his scheduled route and failed to contact Republic, his employment was terminated. Section (1)(a) of the Florida Statutes provides that an employee who voluntarily leaves his or her employment without good cause attributable to the employer is not eligible to receive unemployment benefits (1)(a), Fla. Stat. (2011). As used in this context, the term good cause means circumstances that would impel the average, able bodied, qualified worker to give up his 1 Effective July 1, 2012, section provides: (1) There is created within the Division of Workforce Services of the Department of Economic Opportunity a Reemployment Assistance Appeals Commission. 2

3 employment. See Kloepper v. Unemployment Appeals Comm n, 871 So. 2d 997, 999 (Fla. 5th DCA 2004); Brown v. Unemployment Appeals Comm n, 633 So. 2d 36, 38 (Fla. 5th DCA 1994); Ritenour v. Unemployment Appeals Comm n, 570 So. 2d 1106, 1107 (Fla. 5th DCA 1990; see also Abascal v. South Dade Rehab Assoc. LP, 900 So. 2d 721, 722 (Fla. 3d DCA 2005) ( [W]e agree with the Commission that Abascal s decision to quit her job rather than face possible loss of accrued leave at some time in the future on as of yet unrealized circumstances does not come within [the good cause] exception. See, e.g., Home Fuel Oil Co., Inc. v. Florida Unemployment Appeals Comm n, 494 So. 2d 268, 270 (Fla. 2d DCA 1986) (rejecting the argument that an employer s change in ownership provided claimant with good cause to quit, stating that the statute protects employees of only those employers who wrongfully cause their employees to voluntarily leave their employment ); Uniweld Prods., Inc. v. Indus. Relations Comm n, 277 So. 2d 827, 829 (Fla. 4th DCA 1973) ( [t]o voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment ); see also Frogge v. Davenport, 906 S.W.2d 920, 924 (Tenn. App. 1995) (individual s voluntary decision to quit [which] was motivated only by speculation that he would lose his job and his accumulated benefits was not good cause to leave his employment). ); Margulies v. Pallott & Poppell, 599 So. 2d 195, 196 (Fla. 3d DCA 1992) (holding that 3

4 claimant s leaving work for indefinite period to take care of her ailing mother was voluntary termination of employment without good cause which disentitled her to receipt of unemployment compensation benefits); Glenn v. Fla. Unemployment Appeals Comm n, 516 So. 2d 88, 89 (Fla. 3d DCA 1987) ( Whenever feasible, an individual is expected to expend reasonable efforts to preserve his employment. ). There is no evidence in this case that Republic imposed working conditions so harsh or unreasonable on Guillen that he had no choice but to quit. To the contrary, the evidence was that on the day he was asked to run his route alone and walked off the job, his supervisor told him to try the new route and if it did not work out Republic would try something else. Rather than working with his employer, there was testimony that he refused to run the route. He gave the route sheet back to us and said he wasn t going to do it and pretty much basically walked out the building [and did not return]. On this record, the hearing referee correctly determined that Guillen had voluntarily left his job without good cause. The order denying unemployment benefits to Guillen should, therefore, be summarily affirmed. We write, however, to address the argument raised and adjudicated for the first time by the dissent, that Republic did not properly invoke its right to appeal from the initial non-monetary determination that Guillen was eligible for benefits because Republic had failed to timely respond to an 4

5 information request relating to a monetary determination. This argument is contradicted by the record. Section (3) of the Florida Statutes governs eligibility for unemployment compensation and essentially divides eligibility into two distinct determinations: (1) monetary determinations governed by subparagraph (b), and (2) non-monetary determinations governed by subparagraph (c). MONETARY ELIGIBILITY AND DETERMINATIONS A. Notice to the Employer Under section (3)(a) of the Florida Statutes, the Department of Economic Opportunity is required to notify employers that a claim for unemployment benefits has been made and to advise each employer that it must respond to that claim within 20 days or forfeit relief from a determination as to the amount of any benefits which might be paid under (3)(a): 3. DETERMINATION OF ELIGIBILITY. (a) Notices of Claim. The Department of Economic Opportunity shall promptly provide a notice of claim to the claimant s most recent employing unit and all employers whose employment records are liable for benefits under the monetary determination. The employer must respond to the notice, or in lieu of mailing, within 20 days after the delivery of the notice. If a contributing employer fails to timely respond to the notice of claim, the employer s account may not be relieved of benefit charges as provided in s (3)(a), notwithstanding paragraph (5)(b) (3)(a), Fla. Stat. (2012). 5

6 To comply with this requirement, the Department has adopted rule 60BB (2) titled Notices to Employers which provides that the Department will use AWI Form UCB-412, Determination of Unemployment Compensation claim Filed... to notify the claimant s most recent employing unit and each employer... of each claim for benefits filed, pursuant to Section (3)(a). Fla. Admin. Code R. 60BB (2)(a). On July 28, 2011, the Department provided Republic with a form UCB-412 regarding Guillen s claim as required by section (3)(a) and rule 60BB (2)(a). 2 This form put Republic on notice that a claim for unemployment benefits had been made against it: The claimant whose name appears on this notice has filed a claim for Unemployment Compensation benefits. This notice is being mailed to you either because state records indicate you paid the individual wages during the base period of the claim or the individual has reported that he or she worked for you since the end of the base period and you are therefore, entitled to notice of the claim. It also made a first request for information regarding the types and amounts of wages paid to Guillen and asked Republic to indicate by checking the appropriate box whether Guillen (1) was laid off due to lack of work; (2) was discharged, and if so because of (a) inability to perform, (b) misconduct, or (c) unsatisfactory job 2 While that form is not in the record before us, Republic s two timely responses which reference the UCB-412 it received are in the record. Those responses confirm that Republic was notified by virtue of a UCB 412, Determination Notice of Unemployment Compensation Claim Filed, dated July 28,

7 performance during a probationary period; (3) had voluntarily quit; (4) was suspended; (5) was on leave of absence; (6) refused an offer of work; or (7) was employed by an educational institution. The UCB-412 further warned: If you are a contributing base period employer the Department cannot consider your account eligible for relief from benefit charges (noncharging) for payments on this claim unless you respond to this notice within 20 calendar days from the date mailed to employer as printed on the reverse side of this form. All base period employers should be aware that if the claimant is found to have received benefits in error because you did not respond within 20 calendar days to this claims notice your account cannot be credited for amounts determined overpaid. As required by section (3)(a), Republic responded to this request for information within 20 days stating in two letters sent on the same day: This is in response to form UCB 412, Determination Notice of Unemployment Compensation Claim Filed, dated July 28, In view of the following we request relief of benefit charges and/or a determination on the claimant s eligibility..... [Letter one] The claimant was discharged for insubordination. [Letter two] The claimant was discharged for insubordination. On 7- [23]-2011, The claimant refused to work assignment [sic], walked off the job, and never returned[.] By virtue of these responses, Republic satisfied all of the requirements imposed on it by section (3)(a) and the Florida Administrative Code rules to challenge Guillen s monetary eligibility for unemployment compensation from Republic. 7

8 B. Notice to the Employee While section (3)(a) obligates the Department to provide notice to an employer, section (3)(b), obligates the Department to provide notice to claimants of the amount of any initial monetary determination : (b) Monetary determinations. In addition to the notice of claim, the department shall also promptly provide an initial monetary determination to the claimant and each base period employer whose account is subject to being charged (3)(b), Fla. Stat. (2012) (emphasis added). To comply with this requirement, the Department adopted Rule 60BB (3) titled Notice to Claimants and obligated the Department to send each claimant a form UCB-11 advising of monetary eligibility under section (3)(a): The Agency for Workforce Innovation will issue a determination of monetary eligibility to each claimant on AWI for UCB-11, Wage Transcript Determination,... which will serve as notice to the claimant pursuant to Section (3)(a), F.S. Fla. Admin Code R. 60BB-3.016(3). The day before Republic was notified of Guillen s claim and asked for information regarding his eligibility, the Department sent Guillen a UCB-11 advising him of its initial determination of monetary eligibility. It does not appear from the record before us that a copy of that notice was sent to Republic. At the 8

9 top of the UCB-11, Guillen was warned that the initial monetary benefits being awarded were subject to termination if he quit his job: THIS DETERMINATION TELLS YOU IF YOU HAVE ENOUGH WAGES TO ESTABLISH A CLAIM FOR BENEFITS; HOWEVER, BENEFITS MAY BE DENIED IF YOU QUIT, WERE FIRED OR ARE NOT ABLE TO WORK OR ACCEPT A JOB. IF THERE ARE ISSUES, YOU WILL BE CONTACTED TO PROVIDE MORE INFORMATION. (Some emphasis added). This notice also informed Guillen that if you wish to request monetary reconsideration, you must do so within 20 days. It further advised that if Guillen had, he had the right to seek monetary reconsideration or to appeal within 20 days: **** MONETARY RECONSIDERTION **** If you wish to request monetary reconsideration, you must do so within 20 days. **** APPEAL RIGHTS **** This determination will be final unless a request for reconsideration or an appeal is filed within 20 calendar days after the mailing date of this determination. Guillen sought neither reconsideration nor an appeal from this monetary determination. NON-MONETARY ELIGIBILITY AND DETERMINATIONS 9

10 Thereafter, on August 19, 2011, only two days after Republic sent its timely responses to the UCB-412 stating its objections to payment of monetary benefits, the Department apparently without the benefit of Republic s objections issued an OFFICIAL UCB NOTICE OF DETERMINATION. That notice, adopted by the Department in rule 60BB-3.017, titled Nonmonetary Determinations, stated that based on available information and the fact that the employer had failed to respond to its request for separation information (this request made in the UCB-412, the only request made of the employer), Guillen was entitled to benefits because his discharge was for a reason other than misconduct connected with his work: SECTION I. NOTICE OF DETERMINATION BASED ON AVAILABLE INFORMATION IT IS DETERMINED THAT THE CLAIMANT WAS DISCHARGED FOR REASONS OTHER THAN MISCONDUCT CONNECTED WITH THE WORK. THE EMPLOYER OR THE EMPLOYER S REPRESENTATIVE FAILED TO RESPOND TO THE AGENCY S REQUEST FOR SEPARATION INFORMATION. SECTION II. DETERMINATION IN ACCORDANCE WITH SECTION 443, FLORIDA STATUTES: BENEFISTS ARE PAYABLE BECAUSE: THE DISCHARGE WAS FOR REASON OTHER THAN MISCONDUCT CONNECTED WITH THE WORK. This notice also stated that the determination made therein would become final UNLESS AN APPEAL IS FILED WITHIN 20 CALENDAR DAYS 10

11 AFTER THE MAILING DATE SHOWN ABOVE. No mention was made of the availability of a redetermination as provided in section (3)(e) of the Florida Statutes. Within five days of this notification, Republic sent a letter to the Department expressly referencing the UCB-45, Notice of Determination, dated August 19, In that letter, Republic advised the Department that it had responded to its request for information and attached the letters in response to the UCB-412. It also reoffered the information provided in responses to the UCB-412 made only two days before the UCB-45 determination was issued: This is in reference to form UCB-45, Notice of Determination, dated August 19, We respectfully request a redetermination based on the following information. We request non-charge and offer this information in regards to the UCB 412. The claimant was discharged for insubordination. Please see attached responses provided on While this letter does state that Republic is seeking a redetermination based on the information that was timely provided and should have been considered by the Department when the non-monetary eligibility determination was made, its reference to the UCB-45, which authorized only an appeal makes it clear that this pro se litigant was seeking to invoke the appellate rights extended to it by the UCB-45 to which it was responding. By sending this letter, Republic sought to 11

12 introduce no new evidence so as to trigger a redetermination under section (3)(e). Rather, Republic sought review of the erroneous determination that it had not timely responded and that based on that timely response, Guillen was disqualified from receiving benefits. As Rule 60BB governing appeals in unemployment compensation cases confirms, [a]ny person entitled by law to notice of a determination or redetermination issued pursuant to Section (3), F.S., whose substantial interest is adversely affected thereby may file an appeal from that determination or redetermination. In the same vein, Rule 60BB provides that [a]ny legible written notice filed in accordance with these rules which expresses disagreement with... a determination... shall constitute an appeal. Fla. Admin. Code R. 60BB In sum, the employer timely responded within twenty days of receiving the notice of a claim for unemployment compensation, the Florida Administrative Code supported the decision to treat this matter as an appeal, and competent, substantial evidence in the record confirmed the appeals referee s finding, adopted by the Commission, that the employee did not quit for good cause. Accordingly, the order on appeal is affirmed. LAGOA. J., concurs. 12

13 SALTER, J. (dissenting). Guillen v. Reemployment Assistance Appeals Commission Case No. 3D I respectfully dissent. The Reemployment Assistance Appeals Commission s order approved procedural and legal errors by the Agency for Workforce Innovation, since renamed the Department for Economic Opportunity, in this unemployment benefits case, with the result that the order should be reversed and the case remanded for further proceedings before the Department. I. Facts and Procedural Background The employee, claimant, and appellant here, Mr. Guillen, began working for Republic Services of Florida as a recycling truck driver in October As his supervisor explained at the telephonic hearing in this case: Traditionally, the company has staffed its recycling trucks with two people, a driver and a helper, and corporate you know, for cost-saving reasons, corporate decided they wanted us to change the routes and remove the helper from the route. A supervisor testified that this change was described to Republic s drivers in July 2011, about two weeks before the new policy was implemented, but it is unclear whether that change was translated into Spanish for Mr. Guillen s benefit. 3 At his regular report time, between 5:00 and 5:10 a.m., on the first day the new policy began, July 23, 3 The Republic witnesses acknowledged that Mr. Guillen does not speak English. He was provided an interpreter for the telephonic hearing. 13

14 2011, Mr. Guillen was asked to drive without a helper and to make additional stops on a longer route. Mr. Guillen s testimony on the effect of this policy was not contradicted by the employer. Mr. Guillen established that these changes required him: (a) as a solo driver with no helper, to stop his truck and attend to refuse containers on the right hand side of the truck that would ordinarily have been accomplished by the helper; (b) to work an additional two hours per day without the possibility of overtime pay; and (c) to drive a longer route. When told about the new consolidated route to be driven without a helper, Mr. Guillen objected. His supervisor brought in another employee to translate, and the new requirements and Mr. Guillen s objections were discussed. What happened next is sharply disputed. Mr. Guillen testified that he was told that if he didn t like the new requirements, he should leave, to go home and not to return. Republic s witnesses testified that Mr. Guillen refused to work his assigned route under the newly-imposed conditions, left the workplace, missed the next two business days of work, and was thereupon terminated for job abandonment or resignation. Mr. Guillen filed his claim for unemployment compensation benefits at the Department s office. On July 27, 2011, an initial wage transcript and determination, Department Form UCB-11, was issued, establishing an eligibility for benefits of $275 per week and commencing with an effective date of July 24, 14

15 2011. This notice was sent to the claimant and to Republic. Three weeks later, with an effective date of August 19, 2011, the Department issued a notice of determination confirming that Mr. Guillen was entitled to be paid his benefits. Section I of the notice stated: BASED ON AVAILABLE INFORMATION IT IS DETERMINED THAT THE CLAIMANT WAS DISCHARGED FOR REASONS OTHER THAN MISCONDUCT CONNECTED WITH THE WORK. THE EMPLOYER OR THE EMPLOYER S REPRESENTATIVE FAILED TO RESPOND TO THE AGENCY S REQUEST FOR SEPARATION INFORMATION. Five days later, on August 24, 2011, a senior unemployment insurance consultant from Talx UC express (with a return address in St. Louis, Missouri) sent a fax to the Department as a duly authorized agent empowered to act on behalf of Republic. 4 The cover letter states: We respectfully request a redetermination on the following information. We request non-charge and offer this information in regards to the UCB 412. The claimant was discharged for insubordination. Please see attached responses provided on The record contains nothing to substantiate the claim that Republic authorized representation by Talx. When Mr. Guillen s counsel served Talx with its initial brief in this appeal, Miami counsel for Republic advised this Court that TALX is not Republic Service s registered agent, nor is it counsel for Republic Services. Though section (7), Florida Statutes (2011), exempts authorized representatives from the qualified representative standard imposed by section (2) and normally applicable to administrative proceedings, it seems obvious that an employer should document the authorization, not the out-of-state non-party agent. 15

16 Two nearly-identical letters, each dated August 17, 2011, 5 also from Talx, were attached. The first states [t]he claimant was discharged for insubordination and lists no other reasons or details. The second states [t]he claimant was discharged for insubordination. On , the claimant refused to work assignment, walked off the job, and never returned. Neither the Talx letter of August 24, 2011, nor either of the nearly-identical Talx letters of August 17, 2011, showed copies were sent to Mr. Guillen. Apparently the Department treated the Talx letter of August 24, 2011, as an appeal from the determination in favor of Mr. Guillen, rather than a request for a redetermination, because in mid-september the Department notified Mr. Guillen and Talx that a telephonic hearing was scheduled for the morning of September 27, There were two issues, according to the notice. The first was whether the claimant was discharged for misconduct connected with work or voluntarily left work without good cause in the statute, and the second was whether benefits paid would be charged to Republic s employment record (an issue outside the scope of Mr. Guillen s appeal here). Four days before the telephonic hearing, a Talx representative in Phoenix, 5 The Talx letters were not sent to the Department adjudicator within the twenty-day period specified by section (3)(a), resulting in the adjudicator s initial allowance of Mr. Guillen s claim for benefits. The record also does not include any later confirmation by the Department that it received the Talx letters supposedly faxed on August 17, A similar notice was issued for an earlier date, but Talx requested and obtained a postponement. 16

17 Arizona, faxed directly to the hearing officer, Mr. Herrero, twelve pages of historical information regarding Mr. Guillen s employment and hours. Some of the pages in the record are partly or completely illegible. During the hearing, Mr. Guillen testified that he did not receive his copies of those documents until the day before the 8:45 a.m. hearing. During the hearing, Republic s operations manager (who did not actually witness the disagreement between Mr. Guillen and his immediate boss on July 23, 2011), Mr. Guillen s boss, and another employee who spoke Spanish, testified that Mr. Guillen refused to accept the new requirements for his route, left the workplace, and did not return. Mr. Guillen testified that he was told that if he didn t like the new requirements, he should go home and not return. The appeals referee issued a decision in favor of Republic a few days later, finding that Republic s new policy was implemented July 23, 2011, that Mr. Guillen refused to drive his assigned route, that he invited his supervisor to fire him and left the jobsite, and that he was terminated for job abandonment on July 28, The referee s conclusions of law determined essentially that Mr. Guillen voluntarily quit his job and did not prove that a reasonable person would have given up gainful employment to become unemployed. On that basis, the referee found that the claimant voluntarily quit his job without good cause. Mr. Guillen sought review by the Commission, which affirmed in a standard form order. This 17

18 appeal ensued, and here Mr. Guillen is for the first time represented by an attorney. II. Procedural Issue: Only a Redetermination Was Sought by Talx The procedures for unemployment compensation claims, determinations, redeterminations, and appeals are detailed in separate subsections of a single statutory section, section , Florida Statutes (2011). When a claim is filed, the employer is promptly provided a notice of the claim so that the employer can object to any errors in the wage transcript or eligibility determination. Section (3)(a) provides, in pertinent part, [t]he employer must respond to the notice of claim within 20 days after the mailing date of the notice, or in lieu of mailing, within 20 days after the delivery of the notice. In the case at hand, the Department stated in the August 19, 2011, notice of determination that Republic failed to respond to the Department s request for separation information. Redetermination refers to a specific section of the statute applicable when the Department or a party requests the reconsideration of a previously-issued determination to consider an error, new evidence, or new information after a prior determination. Redeterminations are governed by section (3)(e), while appeals are governed by section (4). Importantly, the Talx letter of August 24, 2011, transmitted in response to the Department s August 19 determination in 18

19 Mr. Guillen s favor, requested a redetermination, not an appeal. 7 This distinction has important procedural ramifications. The new evidence or information submitted for a redetermination may not be considered if it was actually available to a party at the time of the original determination. Ponce v. Fla. Unemployment Appeals Comm n, 47 So. 3d 929, 931 (Fla. 3d DCA 2010); Reeves v. Fla. Unemployment Appeals Comm n, 782 So. 2d 525, 526 (Fla. 1st DCA 2001). Republic and Talx did not submit timely information to the Department alleging misconduct or job abandonment by Mr. Guillen, with the result that the initial determination granted his claim for benefits. Because Talx requested a redetermination five days after that notice of determination, that is the procedure the Department should have followed. No telephonic hearing is required in connection with a redetermination, and none was requested by Talx. A Department adjudicator, rather than an appeals referee, would have considered the new evidence or information and would have considered whether an error occurred or new, persuasive evidence warranted a redetermination denying Mr. Guillen his benefits. After the adjudicator ruled on the redetermination, either party could have filed an appeal. It was error for the Department to ignore the employer s 7 The Talx letter seeking a redetermination submitted attachments and offered additional information as set forth in those attachments, but did not mention or request a hearing. The Department s Office of Appeals and the majority here have simply excused or ignored Republic s untimely response to the initial claim and have recharacterized the Talx request for a redetermination as an appeal. 19

20 specific request for a redetermination and instead to proceed directly to an appeal; for this reason Mr. Guillen s appeal is well taken. 8 III. Legal Issue If Talx Appealed: Good Cause Even if one were to conclude that the Department followed the correct procedure by treating the Talx request for a redetermination as an appeal, Mr. Guillen is also correct that the appeals referee did not apply the proper legal test to his case. The Talx letter of August 24, 2011, characterized Mr. Guillen s separation from employment with Republic as a discharge for insubordination. The appeals referee s notice of hearing instead recast the issue as whether the claimant was discharged for misconduct connected with work or voluntarily left work without good cause as defined in the statute. While insubordination is a form of misconduct and a separate basis for disqualification for unemployment benefits, the burden is on the employer to prove significantly more than a single or isolated act of bad judgment. Crosby v. Unemployment Appeals Comm n, 711 So. 2d 260 (Fla. 5th DCA 1998); Webb v. Rice, 693 So. 2d 1109, (Fla. 3d DCA 1997) (explaining that acts which warrant discharge by an employer may be insufficient to warrant a denial of unemployment benefits for misconduct). 8 Mr. Guillen did not raise this procedural error by the Agency denying his telephonic hearing, but neither did he waive it. At that point, Mr. Guillen had no assistance from an attorney. Because Republic failed to provide evidence in opposition to Mr. Guillen s original claim, it is appropriate to classify the Talx request for a redetermination as precisely that, rather than as an appeal. It is repugnant to the express procedure laid out in section to allow an employer to ignore the Agency s written request to the employer for any evidence of ineligibility ( [t]he employer must respond to the notice of claim within 20 days ) and then to appeal the resulting determination in favor of the claimant (3)(a) (emphasis supplied). 20

21 The appeals referee expanded the disqualification issue from misconduct based on insubordination, the issue raised by Talx in its letter, to include voluntary departure without good cause. Section (1)(a)1, Florida Statutes (2011), provides, in pertinent part, the term good cause includes only that cause attributable to the employing unit which would compel a reasonable employee to cease working. The appeals referee failed to consider and determine whether a reasonable employee would accept the material changes in the terms of employment imposed unilaterally by the employer effective the day of separation, July 23, The testimony by the employer s witnesses and by Mr. Guillen was in agreement regarding these facts: the assistance previously provided by helpers who rode with the drivers on the recycling routes was withdrawn as a cost-saving measure by Republic; for the same cost-saving reason, Mr. Guillen s routes were lengthened, with no additional allowance for overtime; and these changes became effective the day Mr. Guillen left the jobsite, July 23rd. Republic plainly had the right to impose such changes in the terms of employment, as Mr. Guillen was an at-will employee, but that is not the issue. The issue is whether the materially- and unilaterally-altered terms of employment gave Mr. Guillen a reasonable reason to leave his position without losing his statutory rights to unemployment compensation based on his work for Republic over the 21

22 past years. Good cause to quit is established when the employer substantially and unilaterally altered the terms of the agreement under which [the employee] accepted employment. Curras v. Fla. Unemployment Appeals Comm n, 841 So. 2d 673, 674 (Fla. 3d DCA 2003); accord Wilson v. Fla. Unemployment Appeals Comm n, 604 So. 2d 1274, 1274 (Fla. 4th DCA 1992). The appeals referee concluded, under his conclusions of law, that Mr. Guillen had failed to establish that the working conditions were such that a reasonable person would have given up gainful employment to become unemployed, and that Mr. Guillen was not coerced into any illegal or unethical acts. But where, as here, the employer unilaterally and materially alters the terms of employment, it is the employer that must carry the burden of establishing that the employee lacked good cause to terminate the employment relationship. See Jameson v. Unemployment Appeals Comm n, 842 So. 2d 267 (Fla. 2d DCA 2003) (reversing an appeals referee s denial of benefits, finding that when an employer has made sweeping changes to the terms of [an employee s] hire, and no evidence was presented to contradict the employee s reasons for resignation, 9 the employee is entitled to benefits). The effort by Republic and Talx to shift this burden to Mr. Guillen was mistakenly approved by the referee and also requires reversal. Reversal also is warranted by 9 In this case, the record does not address other evidence of misconduct or insubordination. The discussion between Republic s representative and Mr. Guillen was confined to the acceptability of the major change in work requirements imposed by Republic to save money. 22

23 the lack of reasonable notice of additional documents faxed directly to the appeals referee four days before the morning hearing but only delivered to Mr. Guillen the day before that hearing. The majority opinion, after excusing every procedural misstep by Talx as Republic s agent, relies on its own test for good cause. At page four of its opinion, the majority finds no evidence that Republic imposed working conditions so harsh or unreasonable on Guillen that he had no choice but to quit. That is not, and has never been, the correct statutory test for assessing an employee s refusal to accept unilateral, material, and adverse changes in working conditions. IV. Conclusion I would reverse the Commission s order of November 17, 2011, and remand with instructions to return the case to the Department for a redetermination regarding Mr. Guillen s claim under section (3)(e), Florida Statutes (2011), as requested by Republic s purported agent Talx. In the alternative, if the Talx letter of August 24, 2011, were to be construed as an appeal rather than the expressly-stated request for a redetermination, I would reverse and remand the case for further proceedings before a Department appeals referee (a) allowing Mr. Guillen more than a few hours to consider the twelve pages of additional documents faxed by Talx to the appeals referee four days before the telephonic hearing, but delivered to Mr. Guillen the day before the 8:45 a.m. hearing (i.e., 23

24 allowing Mr. Guillen a reasonable opportunity to review the documents before the hearing, afforded parties by section (4)(b)5.c.(I)); and (b) requiring specific findings on the actual legal and factual issue in contention between the parties (i.e., whether Republic s material changes in the terms of Mr. Guillen s employment as a solid waste truck driver provided good cause for his refusal to drive a consolidated, longer, and solo route under section (1)(a)1). For all these reasons, I respectfully dissent. 24