IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA 
FIFTH DISTRICT JANUARY TERM 2002 
HERBERT G. FISHER, 
Appellant, 
v. 
Case No. 5D01-3407 
UNEMPLOYMENT APPEALS COMMISSION, 
Appellee. 
/ 
Opinion filed May 24, 2002 
Administrative Appeal from the 
Unemployment Appeals Commission. 
Herbert G. Fisher, Orlando, pro se. 
John D. Maher, Tallahassee, for Appellee. 
ON MOTION FOR REHEARING 
COBB, J. 

The appellant, Herbert Fisher, challenges the action of the Unemployment Appeals 
Commission, which affirmed the referee’s decision that he was disqualified from receiving 
benefits because of his discharge from employment for misconduct connected with work. 

Fisher argues that the record clearly shows that he was not discharged for “misconduct” as 
that term is defined by statute. Section 443.036(29), Florida Statutes (1999) provides: 
MISCONDUCT. – “Misconduct” includes, but is not limited to, the 
following, which shall not be construed in pari materia with each 
other: 
	(a) Conduct evincing such willful or wanton disregard of 
	an employer’s interests as is found in deliberate violation or
	disregard of standards of behavior which the employer has the 
	right to expect of his or her employee; or 
	(b) Carelessness or negligence of such a degree or 
	recurrence as to manifest culpability, wrongful intent, or evil 
	design or to show an intentional and substantial disregard of the 
	employer’s interests or of the employee’s duties and obligations 
	to his or her employer. 

The Employment Termination Report in this case shows that Fisher was discharged 
from employment because of incompetence rather than misconduct, insubordination, 
absenteeism, falsification of employment application, or violation of company rules. The 
report of the Agency for Workforce Innovation shows the reason for Fisher’s termination was 
“inability to perform the work.” That report noted that “no information has been submitted 
which substantiates misconduct.” 

We agree with the appellant that the instant record reflects incompetence, not 
misconduct. Accordingly, we grant rehearing, withdraw our prior decision, and reverse the 
action of the Unemployment Appeals Commission. 

REVERSED. 
HARRIS and GRIFFIN, JJ., concur.