Deltic Farm & Timber Co. v. Dunn

David Newbern, Judge. In this employment security benefits appeal, the appellant-employer contends insufficient consideration was given to the testimony of the employer’s representative before the appeals tribunal. The testimony of the employer’s representative was admittedly hearsay with respect to the facts surrounding the employee’s dismissal for misconduct. The appeals tribunal held for the employer. The board of review reversed because it found the evidence was not sufficient to establish disqualifying misconduct within the meaning of Ark. Stat. Ann., § 81-1106(b) (Repl. 1976). There was a sharp conflict between the testimony before the appeals tribunal of the employee and the employer’s representative with respect to the circumstances surrounding an incident which precipitated the discharge. We agree with the board of review’s determination that there was substantial evidence to support the employee’s position. Although we had not decided the case of Wood v. Employment Security Division et al., 269 Ark. 613, 599 S.W. 2d 435 (Ark. App. 1980), at the time this case was before the board of review, the principle we announced there applies here. In the face of direct evidence to the contrary, we will not accept as “substantial evidence” the testimony of a company representative who has no direct knowledge of relevant facts. The appellant claims that this case was improperly remanded to the appeals tribunal by the board of review to obtain testimony of the claimant. No authority restricting the authority of the board in this respect is cited. The appellant also contends the referee should have informed the company that his testimony was hearsay and thus insubstantial. We are unaware of any such requirement, and although the referee should feel free to answer procedural questions posed by the parties before him, we question whether the function of the referee should be to suggest to the parties the evidence which should be presented by them. The appellant does not suggest it was in any way prevented from presenting more direct evidence. Affirmed.