Mаria Cesar appeals a final order of the Reemployment Assistance Appeals Commission (the Commission) reversing an appeals referee’s decision qualifying her for unemployment benеfits on grounds she committed disqualifying misconduct by making personal calls from her work phone. Because the Commission improperly substituted its own factual findings for those of the appeals referee, we rеverse and remand with directions to reinstate the decision of the appeals referee.
After GHM Hollywood Mar, LLC terminated Ms. Cesar’s employment, she sought unemployment compensation benеfits, but her former employer took the position that she was not entitled to benefits because of personal phone calls she had made at work.
The burden to prove misconduct rests on the employer. See SKF Mgmt. v. Unemployment Appeals Comm’n,664 So.2d 345 , 347 (Fla. 5th DCA 1995) (“[T]he employer has the burden of proving that the act or acts complained of constitute ‘misconduct’ sufficient to disqualify the employee from receiving unemployment compensation benefits.”) citing Gunther v. Barnett Banks, Inc.,598 So.2d 243 , 245 (Fla. 2d DCA 1992); Sheriff of Monroe County v. Unemployment Appeals Comm’n,490 So.2d 961 , 962 (Fla. 3d DCA), rev. denied,500 So.2d 544 (Fla.1986). Accord Pascarelli v. Unemployment Appeals Comm’n,664 So.2d 1089 , 1091 (Fla. 5th DCA 1995); Paul v. Jabil Circuit Co.,627 So.2d 545 , 546 (Fla. 2d DCA 1993).
Lyster v. Fla. Unemployment Appeals Comm’n,
The appeals referee ruled that the “claimant is not disqualified from the receipt of benefits.” On the basis of the evidence adduced at the telephonic hearing, the appeаls referee made the following findings of fact (and no others):
The claimant worked as a reservations specialist for a hotel. The claimant worked for the employer from February 4, 2009, through June 4, 2012. During the claimant’s employment, she made several personal calls on her work phone to her mom regarding her medical diagnosis, and her boyfriend. While on the personal calls, the claimant continued to perform her required tasks. On June 4, 2012, the director of sales and human resources manager suspended the claimant until further notice due to making personal calls while at work. On June 6, 2012, the general manager and human resources manager discharged the claimant for misuse of company property and disregard of the employer’s policy-
The appeals referee concluded thаt the employer did not prove that she was discharged for “misconduct connected with work,”
On the employer’s appeal to the Reemployment Assistance Appeals Commission, the Commission adopted the appeals referee’s findings of fact in their entirety — at least ostеnsibly. But the Commission reversed the appeals referee’s decision based on factual findings of its own never found by the appeals referee. Among other things, in irreconcilable conflict with the appeals referee, the Commission found that Ms. Cesar “knew or should have known” of the policy prohibiting employees from making personal phone calls from work phones (because of a written policy prohibiting cell phone use while “on the clock”). See Glover v. Sanford Child Care, Inc.,
In modifying the appeals referee’s findings, including his finding that Ms. Cesar did not know about the company’s policy prohibiting personal cаlls from work phones, the Commission, as the Second District stated in Tedder v. Florida Unemployment Appeals Commission,
“This Court may overturn a legal conclusion of the Commission if it is clearly erroneous and, in reviewing the Commission’s substituted conclusion, must assure that the correct rules of law were аpplied.” Howell & O’Neal v. Fla. Unemployment Appeals Comm’n,
The Commission’s standard of review of an appeals referee’s decision is whether the referee’s findings of fact are based*1184 on competent, substantial record evidence аnd whether the proceedings on which those findings are based complied with the essential requirements of law. Szniatkiewicz v. Unemployment Appeals Comm’n,864 So.2d 498 , 501-02 (Fla. 4th DCA 2004). The appeals referee, as the trier of fact, is privileged to weigh and rejeсt conflicting evidence, and the Commission cannot reweigh the evidence and substitute its findings for those of the referee. Id. at 502. Although the Commission may reject the referee’s conclusions of law without limitatiоn, it may not modify the facts to reach a different legal conclusion, rely on facts that were not established at the hearing, or rely on a theory not advanced by one party or anticipated by the other. See id. This Court cannot make credibility determinations or substitute its judgment for that of the referee and must uphold the appeals referee’s decision where there is competent, substantial evidence to support it. See id.; Ford v. Se. Atl. Corp.,588 So.2d 1039 , 1040 (Fla. 1st DCA 1991).
Id. (reversing the Commission for improperly rejecting the appeals referee’s factual findings where they were supported by competent, substantial evidenсe and for relying on facts not established at the hearing before and found by the appeals referee).
The Commission may not substitute its findings of fact for those of the appeals referee. See Peace River Distrib., Inc. v. Fla. Unemployment Appeals Comm’n,
We reject the Commission’s conclusion that Ms. Cesar “showed a blatant and reckless disregard for the еmployer’s interests”
Because the Commission improperly rejected the appeals referee’s finding that Ms. Cesar was unaware of the policy prohibiting personаl calls from the work phone, substituted its own finding that Ms. Cesar knew or should have known of this policy, and added its own findings in concluding that Ms. Cesar committed disqualifying misconduct, we reverse and remand to the Commission with directions thаt Ms. Cesar be awarded unemployment benefits.
Reversed and remanded.
Notes
. Misconduct connected with work is defined under § 443.036(30), Fla. Stat. (2011) as:
(a)Conduct demonstrating conscious disregard of an employer’s interests and found to be a deliberаte violation or disregard of the reasonable standards of behavior which the employer expects of his or her employee.
(b)Carelessness or negligence to a degree or reсurrence that manifests culpability or*1183 wrongful intent, or shows an intentional and substantial disregard of the employer's interests or of the employee’s duties and obligations to his or her employer.
(c)Chronic аbsenteeism or tardiness in deliberate violation of a known policy of the employer or one or more unapproved absences following a written reprimand or warning relating to more than one unapproved absence.
(d)A willful and deliberate violation of a standard or regulation of this state by an employee of an employer licensed or certified by this state, which violation would cause the employer to be sanctioned or have its license or certification suspended by this state.
(e)A violation of an employer’s rule, unless the claimant can demonstrate thаt:
1.He or she did not know, and could not reasonably know, of the rule’s requirements;
2.The rule is not lawful or not reasonably related to the job environment and performance; or
3.The rule is not fairly or consistently enforced.
. Section 120.57(1)(Z), Florida Statutes (2011) рrovides in relevant part:
The agency may not reject or modify the findings of fact unless die agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidenced]
. Generally, an employee must evidence intentional insubordination to meet this standard of misconduct. See LaCharite v. State, Unemployment Appeals Comm’n,