5D00-2683opKINGSLEY-UNEMPLOYMENT

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D00-2683opKINGSLEY-UNEMPLOYMENT

Case Date: 05/21/2001

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2001

THOMAS E. KINGSLEY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, ET AL, Appellees. / Opinion filed May 25, 2001. Administrative Appeal from the Unemployment Appeals Commission. Kurt Erlenbach, of Erlenbach & Erlenbach, P.A., Titusville, for Appellant. John D. Maher, Tallahassee, for Appellees. GRIFFIN, J. Thomas E. Kingsley ["Kingsley"], appeals an order of the Unemployment Appeals Commission affirming a referee's decision denying him unemployment compensation. On appeal, Kingsley contends that the referee's written decision was inconsistent in that it resolved conflicts in favor of the claimant, yet ruled for the employer. Also, Kingsley contends that the referee's repeated interruptions and unclear decision deprived the parties of their due process rights. Although preparation of the decision was botched and the referee's interference appears somewhat overbearing, we find no reversible error. Kingsley was employed by DVW, Inc. as a support technician for MedWare, a CASE NO. 5D00-2683

software product sold by the employer. He began employment on May 3, 1999 and was discharged on March 14, 2000. Kingsley applied for unemployment compensation benefits and the claims adjudicator ruled in his favor. MedWare appealed that decision. At the appeal hearing, Patricia Deese ["Deese"], Kingsley's immediate supervisor, testified that she terminated Kingsley for: (1) using unapproved methods for solving technical problems for clients; (2) rendering services to MedWare clients off-site, without permission from MedWare; (3) excessive phone use for personal reasons/abuse of the internet; and (4) excessive absenteeism. While the hearing mainly focused on the second reason, the employer also cited to occurrences of unsatisfactory performance for which Kingsley received reprimands and poor scores on his July performance evaluation. In August, the employer again reprimanded Kingsley for excessive personal phone calls and internet abuse. Kingsley transferred to another department, but his performance failed to improve. In October, two clients complained about Kingsley's poor technical support and MedWare reprimanded Kingsley. In February, Deese learned that Kingsley had agreed to perform services for MedWare clients off-site. She informed Kingsley that this practice violated company rules but allowed Kingsley to finish the project, so as to not penalize the client. The employer later learned that Kingsley was currently performing or had performed similar services for other clients. The employer decided to have Kingsley sign a stricter non-compete

agreement, which Kingsley refused to do. MedWare fired Kingsley. Kingsley admits that he performed hardware services for a MedWare client, that he received money for such services and that his supervisor told him not to perform this work. During the appellant's cross-examination of Deese, the following occurred: -2-

APPELLANT: Okay. Patricia, you said that I had a reprimandthat I didn't sign that one reprimand. Let's see- if you take a look - on HEARING OFFICER: You're giving testimony, Mr. Kingsley. APPELLANT: No, no. I have a question. HEARING OFFICER: Mr. KingsleyAPPELLANT:

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