
    Sharon HILL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, et al, Appellee.
    No. 96-546.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 1996.
    Rehearing Denied Jan. 15, 1997.
    
      Megan Wall, Palatka, for Appellant.
    William T. Moore, Tallahassee, for Appel-lee, Unemployment Appeals Commission.
   HARRIS, Judge.

Although to do so condones what appears to be a harsh result in this case, we agree that the Unemployment Appeals Commission (UAC) can properly determine that the applicant’s refusal to return to work at her former job disqualifíés her from unemployment benefits. The issue in this case is not whether Ms. Hill was denied unemployment benefits merely because she refused to accept a position some 80 miles from her home. If that were the problem, then the objective, reasonable man standard urged by appellant might be appropriate in order to determine whether the job in question was indeed “ suitable.” But in this case, where the applicant herself accepted the job and worked at it so that unemployment benefits became available to her because of this job, a more subjective standard is appropriate. Section 443.101(2)(a) provides:

In determining whether or not any work is suitable for an individual, the division shall consider the degree of risk involved to his health, safety, or morals; his physical fitness and prior training; his experience and prior earnings; his length of unemployment and prospects for securing local work in his customary occupation; and the distance of the available work from his residence.

This statute tells us that it is the division (and not this court), based on the evidence before it, that shall first determine whether the particular job is or is not suitable under the circumstances of the case. And the construction of a statute by the agency charged with its administration is entitled to great weight and will not be overturned unless clearly erroneous. Laborers’ International Union of North America, Local 4-78 v. Burroughs, 541 So.2d 1160 (Fla.1989). In determining whether a job is suitable to a person who has accepted that job, the division is not required to determine whether it is generally reasonable to expect someone to travel 80 miles to accept employment. Ms. Hill, by accepting the job in the first place (the job that forms the basis for her unemployment claim), has demonstrated that the job was suitable to her at the time she accepted employment. Nothing about the job changed after her call back from the short layoff. The only change was that her original ride is no longer available. But it is the employee’s responsibility, whether the job is at a distance of 2 miles or 82 miles, to provide for transportation.

Ms. Hill acknowledges that she could not refuse to work if her co-worker terminated his employment so that she no longer had a ride or if her car broke down and she could not afford to repair it and yet draw unemployment benefits. She contends, however, that her call-back after the layoff constituted a new job offer the same as if a new employer was involved. But we see the call-back as an invitation to continue the previous employment after additional work became available. It is true, as urged by Ms. Hill, that one is just as “unemployed” during a layoff as he or she would be if discharged. And, that is why one is entitled to unemployment benefits even during a layoff period. The difference is that in a call-back after a layoff, one is being asked to return to the same job. This question then becomes whether the former “suitable” job has become “unsuitable” because of the layoff period.

The UAC has determined that the employer/employee relationship between Ms. Hill and her employer after the call-back was such that the law requires that she go back to work at the same job or lose her benefits. We do not find that this ruling is “clearly erroneous.”

Suppose an unemployed engineer accepted a job at McDonald’s qualifying him for unemployment benefits and then refused to accept a transfer to another McDonald’s five miles away. Should he prevail on a claim for unemployment benefits because his “prior training” and “experience” makes the “new” McDonald’s job unsuitable?

If we were to accept Ms. Hill’s position, we would be creating a precedential nightmare for the UAC.

AFFIRMED.

DAUKSCH, J., concurs.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, Judge,

dissenting.

I respectfully dissent. I agree with appellant that the UAC’s justification for affirming the denial of unemployment benefits is legally unsupportable.

Appellant was employed as a laborer by Hubbard Construction Company in Palm Coast from May 1, 1995, through June 1, 1995. She was then transferred to a job site in Jacksonville where she worked until the Jacksonville project on which she had been working was shut down by DOT and she was let go on July 11, 1995. Appellant had continued to reside in Palm Coast while employed in Jacksonville and had ridden to work with another company employee. That employee was apparently also laid off in July.

Appellant promptly applied for unemployment compensation benefits. Three weeks later, Hubbard contacted appellant and offered her one of two laborer jobs available on the same Jacksonville project. Appellant refused the job because she had no transportation. She admitted that the position offered her was the same job she had previously held but explained that she had carpooled to the job before with another employee who was not rehired. The claims adjudicator denied appellant’s benefits finding that Hubbard’s offer of suitable work was refused without good cause.

Following the hearing, the appeals referee entered an order affirming the denial of benefits. The referee found as follows:

CONCLUSIONS OF LAW: The law provides that a claimant shall be disqualified from receiving benefits for having failed without good cause to apply for available, suitable work when so directed by the division or employment office or to accept suitable work when offered. “Good cause” for refusing to apply for or accept suitable work is a cause of a reasonably compelling and necessary nature.
The record reflects that the claimant refused an offer of work because she did not have transportation. Basic to the employer/employee relationship is the duty of employees to report to work as scheduled and to make arrangements for transportation to report for work. The record reflects that the claimant did not make any attempt to arrange for transportation but immediately refused the offer of work. The record is devoid of any evidence to establish that the job was unsuitable or that the conditions were any different than when she previously worked for the employer. Consequently, the claimant was properly disqualified from receipt of benefits.

The issue is whether appellant had “good cause” to refuse a “suitable” offer of work. See § 443.101, Fla.Stat. (1995). “Suitable” is described in section 443.101(2)(a):

In determining whether or not any work is suitable for an individual, the division shall consider the degree of risk involved to his health, safety, and morals; his physical fitness and prior training; his experience and prior earnings; his length of employment and prospects for securing local work in his customary occupation; and the distance of the available work from his residence.

The UAC has conceded that if appellant were being offered any other job in Jacksonville, or even this job, for the first time, she would have had good cause to refuse it because the distance from her home made it unsuitable. The record reflects the distance is eighty-two miles. The UAC contends, however, that appellant was not free to reject this job, even though it was eighty-two miles from her home, for the sole and simple reason that she had previously performed the job. The UAC can cite no statute or case that would support this distinction; rather, it urges that some sort of estoppel applies, i.e. that since appellant performed the job previously, she is estopped to contend now that the job is either unsuitable or that she has good cause to refuse it. Even if estoppel were applicable in such a situation, it fails to take into account that what may have been “suitable” in one circumstance is not necessarily suitable in another. When appellant was employed previously, she had a convenient ride to Jacksonville- with someone she knew. Rather than quit her job and collect unemployment when she was initially transferred to Jacksonville, she determined to make the commute by riding with someone she knew. Hubbard then made the decision to terminate her. On what legal basis her former employer, Hubbard, retained any right to compel her to take this job in Jacksonville, which would be “unsuitable” if offered by any other employer, is left completely unexplained by the majority opinion.

The UAC’s only stated reason for its position as expressed in its brief is no help: “When unemployment compensation benefits are paid to former employees separated from work under nondisqualifying conditions, those benefits must normally be charged to the accounts of all former employers in their base period, on a pro rata basis. Because of this, employers have an interest in seeing that unemployed former employees who refuse offers of suitable work are denied benefits under the statute.” I decipher this to mean that the agency has concluded that the “suitability” requirement ought not to apply to the rehire of an employee currently collecting benefits. The majority relies on what it chooses benignly to call a “call back” after a “lay off,” but this is a phantom distinction — at least as the law is presently written. Even the UAC makes no effort to draw any distinction between the legal status of a person who has been fired for lack of work and one who has been laid off with the hope of rehire. For purposes of Chapter 443, both are equally “unemployed.” § 443.036(32), Fla.Stat. (1995). As far as I can tell, there is no “layoff” netherworld in Chapter 443 that binds an employee to the conditions of his or her former job. It affirmatively appears in this record that the UAC’s adjudication criteria for “suitability” does not include a prior history of commuting a great distance or doing otherwise unsuitable employment for the former employer. Besides, in light of the UAC’s very suspect reliance on estoppel, it would necessarily follow that an employee who had previously done an unsuitable job, was discharged, hired to do a different job, discharged and then offered the first job again, would still be “estopped” to assert its unsuitability. It seems as though it would be very difficult to articulate such a distinction between someone who was terminated and someone who was merely laid off based on the subjective intent of the employer, but if such a distinction is to be made, it must be made by statute or promulgated rule. It has nothing to do with estoppel.

Finally, I fail to see what precedential nightmare the majority fears. In the first place, it is unlikely that there are that many cases where a person accepts suitable employment, gets offered a transfer to unsuitable employment which the employee accepts, is then discharged and later offered a rehire of the same job. But, if the majority is right that this would create a nightmare, it is high time either the UAC or the legislature deals with the “layoff’ situation and enacts legislation or promulgates a rule to address it. 
      
      . The UAC says that:
      If [Mrs. Hill] had never worked the job in question, all else being equal, her lack of transportation would have probably provided “good cause” for refusing a job as far away from her home as the one in question was. But, having already held such a remote location job, she is estopped from using the distance [as cause to refuse the job],
     
      
      . None of the elements of estoppel appear to be present; the employer’s “detrimental reliance” is a particular mystery.
     