Daniel S. Kuczler of Florida Rural Legal Services, Inc., Fort Pierce, for appellant.
Louis A. Gutierrez, Tallahassee, for appellee Unemployment Appeals Commission.
Appellant, Juan Ellis, appeals a final order entered by the Unemployment Appeals Commission (" UAC" ), affirming the appeals referee's decision to dismiss his appeal due to an untimely filing when two separate, contradictory notices of determination were sent to Ellis. We remand this cause for an evidentiary hearing to determine whether Ellis's late filing was directly attributable to the Agency for Workforce Innovation's (" AWI" ) contradictory notices of determination, one of which denied Ellis of benefits and one of which granted Ellis benefits.
Ellis was employed by ADP Totalsource Co. XXIII Inc. (" ADP" ) until he was terminated on January 31, 2010. Ellis filed for unemployment compensation, effective February 14, 2010. On March 10, 2010, a notice of determination was mailed to Ellis, providing that he was not eligible for benefits because he quit his job to attend school and the reason for quitting was not attributable to his employer. Also mailed on March 10, 2010 was a notice of determination stating that Ellis's " school attendance does not interfere with his[ ] ability to seek and accept full time work." The second notice further provided that Ellis was eligible for benefits because he " is able and available for work as required by law." The difference between the two notices of determination was that one provided that ADP was Ellis's former employer, while the other did not have an employer listed. Ellis included his position at ADP and a
position he held just before he was employed by ADP on his application for benefits. However, in its response, AWI did not clearly notify Ellis as to which former position led to the granting of benefits and which led to the denial of benefits.
Ellis was allegedly under the impression that, based on the notices of determination, he was going to receive benefits and that the second notice was sent to correct a mistake in the first notice. On March 31, 2010, when he realized he was not receiving benefits, Ellis called the AWI and was notified he was actually denied and needed to submit a late appeal. Ellis submitted the appeal on the same day, which was the twenty-first day after the notices of determination were mailed. An appeal hearing was held and the referee dismissed the appeal for lack of jurisdiction due to untimely filing. Ellis timely appealed the referee's decision and the UAC affirmed the decision by final order on June 30, 2010. This appeal followed.
An appeal referee's findings are to be accorded a presumption of correctness. The UAC's standard of review of the appeals referee's decision is whether the referee's findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law.
Szniatkiewicz v. Unemployment Appeals Comm'n, 864 So.2d 498, 501-02 (Fla. 4th DCA 2004) (internal citation omitted).
Section 443.151(3)(b), Florida Statutes, provides that monetary determinations on unemployment compensation claims are:
[F]inal unless within 20 days after the mailing of the notices to the parties' last known addresses, or in lieu of mailing, within 20 days after the delivery of the notices, an appeal or written request for reconsideration is filed by the claimant or other party entitled to notice.
§ 443.151(3)(b), Fla. Stat. (2010). Florida Administrative Code Rule 60BB-5.007 provides, in relevant part, that:
(1) If it appears that the appeal initiating the proceedings was not filed within the time allowed by law, the appeals referee shall notify the parties that timeliness of the appeal shall be ...