claimant did not intentionally withhold information vital to the employer’s interest, nor was deliberately inefficient, nor was guilty of such negligence as to be deemed in deliberate violation of the employer’s rules
How later courts described this case
- claimant did not intentionally withhold information vital to the employer’s interest, nor was deliberately inefficient, nor was guilty of such negligence as to be deemed in deliberate violation of the employer’s rules
- claimant did not intentionally withhold information vital to the employer’s interest, nor deliberately inefficient, nor guilty of such negligence as to be deemed in deliberate violation of the employer’s rules
Written by the judges who cited it.
The opinion
John Mauzy Pittman, Judge, dissenting. I dissent from a reversal of the Board’s decision because it represents a departure from our standard of review. The focus of the Board’s finding of misconduct was on the recurring deficiencies in appellant’s performance of her duties over an extended period of time. As stated by the majority, misconduct can be found when the failure of good performance is of such a degree or recurrence as to manifest an intentional disregard of the employer’s interest. That is what the Board found to constitute misconduct in this case. While the majority recognizes that the final delivery incident was the “last straw,” it treats this as an isolated incident rather than the last occurrence in a series of events demonstrating unsatisfactory performance in all of her duties. By focusing on this one incident involving one aspect of her duties, the majority has succumbed to the temptation of substituting its judgment for that of the Board in a misguided effort to decide this case as if it were the trier of fact. That this is so is further demonstrated by the majority’s mention of only the decision of the Board, but not the findings of fact made by the Board in support of that decision.
It is for the Board to translate the evidence before it into findings of fact, and it is our function, upon review, only to determine whether those findings are supported by substantial evidence. As noted by the Board in its findings, appellant, a long-term employee, possessed the demonstrated ability to do her job, but for reasons appellant did not explain (in her “uncontradicted” testimony), her performance declined and continued on a downward slope despite the warnings and the opportunities afforded by her employer to improve her performance. Thus, the Board reasoned that this was not a case of mere inefficiency or the failure of good performance as the result of inability, but rather a case where the evidence revealed a pattern of poor performance of such a degree as to manifest an intentional disregard of her employer’s interest.
This case is similar to Perry v. Gaddy, 48 Ark. App. 128 , 891 S.W.2d 73 (1995), in which we affirmed the Board’s finding of misconduct when a ten-year employee, who had a proven ability to perform the job, inexplicably and recurrendy over a period of time began to fail to meet the employer’s minimal standards.
Whether an employee’s acts are willful or merely the result of unsatisfactory conduct or unintentional failure of performance is a fact question for the Board to decide. Rucker v. Director, 52 Ark. App. 126 , 915 S.W.2d 315 (1996). The Board’s denial of unemployment compensation based on a finding of misconduct is fully supported by substantial evidence and should be affirmed.
ROGERS, J., joins in this dissent.