The opinion
Andree Layton Roaf, Judge, dissenting. I would reverse the decision of the Board of Review in this case, and remand for an award of benefits. When Mr. Anderson returned to work more than thirty days after the accident, after being released by his workers’ compensation treating physician, he learned he would not be allowed to work. According to his testimony, he was told by his supervisor, Bill Williams, that “we got two ways we can go. We can terminate you or you can sign a resignation.” Although Williams also told Anderson that a final decision had not yet been made, Anderson stated that Williams advised him that it would be better for him to resign because it would “look better” in securing other employment. Although the testimony of a party cannot be taken as undisputed, it cannot be arbitrarily disregarded; there must be some basis for disbelieving it. See Timms v. Everett, Director, 6 Ark. App. 163 , 639 S.W.2d 368 (1982). Here, the employer did not produce Anderson’s supervisor as a witness at the hearing, and Anderson’s testimony that Williams procured his resignation was not refuted.
Although the record reflects that the employer reported the suspension in various documents as, initially, for thirty days and later, in a fax to the Board, for ninety days, by the time of the hearing the Director of Administration for the employer testified that “we don’t have any set time for suspension,” that he did not know how long the suspension would have lasted, and that he could not say whether Anderson would have been fired. He also testified that he did not know if Williams suggested to Anderson that he resign.
Thus, Anderson was faced with a “catch-22 situation.” He could continue in limbo, with no pay, and await the employer’s decision, or take his supervisor’s advice and resign. Had Anderson been fired for being involved in an accident, pursuant to our case law, he would have been eligible to recover unemployment benefits. This court has made clear that there is an element of intent associated with misconduct, and that ordinary negligence in isolated instances is not sufficient. “There must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design.” Rollins v. Director, 58 Ark. App. 58 , 945 S.W.2d 410 (1997); Carraro v. Director, 54 Ark. App. 210 , 924 S.W.2d 819 (1996). Moreover, had Anderson remained on unpaid “suspension,” it is clear that he would have been eligible to receive benefits. Pursuant to Ark. Code Ann. § 11-10-214 (a) (Repl. 1996), a person is deemed unemployed with respect to any week during which he “performed no services” and “no wages are payable to him.” Anderson would be neither “ineligible” to receive benefits or “disqualified” from receiving benefits during an unpaid “suspension” pursuant to our employment security law. See Ark. Code Ann. § 11-10-510 to -519 (Repl. 1996).
Clearly, an employer cannot defeat an employee’s entitlement to benefits by keeping him on unpaid suspension for an indefinite and prolonged period of time until the employee is fired or resigns. However, in this instance Anderson, on the advice of his supervisor, resigned and as a result is denied the benefits to which he would have otherwise been entitled had he not followed this advice. Consequently, Mr. Anderson’s resignation was, in all important respects, merely an acknowledgment that he would never again be gainfully employed by his employer. I would reverse.
Griffen, J., joins.