Hamby v. Everett

Donald L. Corbin, Judge. Appellant has appealed from a decision of the Arkansas Employment Security Board of Review which held that she was disqualified from receiving benefits. We affirm. Appellant was employed in the collection department at Dillard’s Department Store. Her job was to contact delinquent accounts by telephone and attempt collection of these accounts. Dillard’s discharged the appellant for making unauthorized long-distance telephone calls which was in violation of company policy. Appellant’s application for employment benefits was denied by the agency under Section 5 (b) (1) of the Arkansas Employment Security Act [Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1976)]. Appellant appealed the decision to the Appeal Tribunal which held that there was insufficient evidence presented to indicate a deliberate or willful act against the best interest of the employer by the claimant. The Appeal Tribunal held she was discharged for reasons other than misconduct in connection with her work. The employer appealed the decision of the Appeal Tribunal to the Board of Review. The Board of Review reversed the decision of the Appeal Tribunal and held that appellant was disqualified under 5 (b) (2) of the Arkansas Employment Security Act [Ark. Stat. Ann. § 81-1106 (b) (2) (Repl. 1976)] which provides as follows: If he is discharged from his last work for misconduct in connection with the work on account of dishonesty, drinking on the j ob, reporting for work while under the influence of intoxicants, or willful violation of the rules or customs of the employer pertaining to the safety of fellow employees or company property, he shall be disqualified from the date of filing his claim until he shall have ten (10) weeks of employment in each of which he shall have earned wages equal to at least his weekly benefit amount. The Board of Review made the following finding regarding appellant’s misconduct: The Board of Review finds that the claimant was discharged for misconduct in connection with the work. The unauthorized use of the telephone to make personal calls can be interpreted as a willful violation of company rules, and theft of property, telephone, usage. The employer has proof by telephone records to whom the calls were made and the claimant’s statement that she was using these family, relatives and friends in her work cannot be accepted in this case. The issue on appeal is whether there is substantial evidence to support the decision of the Board of Review that appellee is disqualified from receiving benefits due to misconduct. Ark. Stat. Ann. § 81-1107 (d); Harris v. Daniels, 263 Ark. 897, 567 S.W. 2d 954 (1978); Stagecoach Motel v. Krause, 267 Ark. 1093, 593 S.W. 2d 495 (1980). In Stagecoach Motel v. Krause, supra, this court stated the following regarding misconduct: The general rule is that misconduct (within the meaning of the Unemployment Compensation Act excluding from its benefits an employee discharged for misconduct) must be an act of wanton or wilful disregard of the employer’s interest, a deliberate violation of the employer’s rules, a disregard of the standard of behavior which the employer has a right to expect of his employees. We hold that there is substantial evidence to support the Board of Review’s decision. The Board of Review obviously rejected appellant’s claim that the telephone calls were in connection with her employment. While we are sympathetic with the argument advanced by the dissent that credibility should be determined at the administrative hearing level, we believe this is a matter which is best addressed by the Legislature and not the courts. Affirmed. Glaze and Cooper, JJ., dissent.