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ARKANSAS COURT OF APPEALS DIVISION II No.E-13-733

MERRY LOGAN Opinion Delivered February 26, 2014 APPELLANT APPEAL FROM THE ARKANSAS V. BOARD OF REVIEW [NO. 2013-BR-01962]

DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES, AND DELTA RESOURCE CENTER REVERSED APPELLEES

RITA W. GRUBER, Judge

In this unbriefed unemployment-benefits case, Merry Logan petitions this court to

review a denial of unemployment benefits. Ms. Logan initially appealed the Department of

Workforce Services’ denial to the Arkansas Appeal Tribunal, which conducted a hearing and

affirmed the Department’s denial of benefits. Ms. Logan then filed a timely appeal to the

Arkansas Board of Review, which denied her application for appeal; therefore, for purposes

of judicial review, the Tribunal’s decision will serve as the decision of the Board.

(f) (Repl. 2012). We reverse the Tribunal’s conclusion that Ms. Logan was

discharged for misconduct, thus qualifying her to receive benefits under Arkansas law.

A person shall be disqualified from receiving unemployment benefits if it is found that

the person was discharged from his or her last work on the basis of misconduct in connection

with the work.

(a)(1) (Supp. 2013); Valentine v. Director,

. “Misconduct,” for purposes of unemployment compensation, involves (1) Cite as

disregard of the employer’s interest, (2) violation of the employer’s rules, (3) disregard of the

standards of behavior the employer has a right to expect of its employees, and (4) disregard

of the employee’s duties and obligations to the employer. Nibco, Inc. v. Metcalf,

,

(1981); see also Garrett v. Director,

.

For unemployment-insurance purposes, the definition of misconduct requires more

than mere inefficiency, unsatisfactory conduct, failure in good performance as a result of

inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good-faith

errors in judgment or discretion. Johnson v. Director,

,

(2004). An element of intent is also required: mere good-faith errors in judgment or

discretion and unsatisfactory conduct are not misconduct unless of such a degree or recurrence

as to manifest culpability, wrongful intent, evil design, or intentional disregard of an

employer’s interest.

“An individual’s repeated act of commission, omission, or negligence

despite progressive discipline constitutes sufficient proof of intentional poor performance.”

(a)(4)(B) (Supp. 2013).

Ms. Logan was an administrative assistant. She was discharged for failure to mail tax

payments to the IRS on behalf of her employer Delta Resource Center. At the hearing before

the Tribunal, Ms. Logan testified that her conduct was a mistake, and her employer testified

that her conduct was an act of negligence. Ms. Logan testified that prior to the incident for

which she was discharged, she had worked very well. The record reflects no prior disciplinary

actions. The employer did not provide any testimony regarding whether Ms. Logan had

received progressive discipline. The Tribunal’s written decision included the following

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findings:

The claimant failed to notify her employer that she had not made payment on a tax bill she had received monies to pay and also failed to notify her employer that the IRS had sent a notice about this deficiency. Although it is not found that the claimant willfully sought to harm her employer her conduct showed negligence of such degree and recurrence that it leads to a finding of misconduct on her part.

Appellate review is limited to determining whether the Board could reasonably reach

its decision upon the evidence before it. White v. Director,

,

(1996). We review the Board’s findings in the light most favorable to the prevailing party,

reversing only where those findings are not supported by substantial evidence. Ballard v.

Director,

. Issues of credibility of witnesses and weight to be afforded their

testimony are matters for the Board to determine.

We review the Tribunal’s decision under the same standard. Here, the employer did

not dispute that Ms. Logan’s act was unintentional. In order for an unintentional act of

negligence to constitute sufficient proof such that it may be considered “intentional poor

performance,” that act must be repeated despite progressive discipline.

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10-514(a)(4)(B). Because substantial evidence is lacking that Ms. Logan received progressive

discipline for her actions, we reverse.

Reversed.

WALMSLEY and GLOVER, JJ., agree.

Merry Logan, pro se appellant.

Phyllis Edwards, for appellee.

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