FROM THE ARKANSAS BOARD OF REVIEW [NO. 2016-BR-01783]
R. Zenaro, pro se appellant.
Phyllis Edwards, Associate General Counsel, for appellee.
F. VIRDEN, JUDGE
Paul Zenaro appeals the decision of the Arkansas Board of
Review (Board) denying him unemployment benefits. He contends
that substantial evidence does not support the Board's
conclusion that he is disqualified from receiving benefits on
finding he was discharged from last work for misconduct
connected with the work. We agree and reverse and remand.
was a merchant-account representative for Entertainment (L)
for six years. He worked in the Fayetteville market but was
reassigned to Saint Louis, to which he commuted weekly,
incurring travel and related expenses. The company provided
two written warnings to Zenaro regarding his sales revenue
and placed him on a performance-improvement plan. He was
discharged for poor job performance on September 16, 2016,
and on October 21, 2016, he received notification from the
Department of Workforce Services that his claim for
unemployment benefits had been denied. He filed timely
appeals to the Appeal Tribunal and the Board of Review.
hearing was held before the Appeal Tribunal. The employer did
not appear, but Zenaro testified that he had experienced some
difficulty attaining the revenue needed to justify his
transfer to a new market and to offset the resulting travel
costs but that he had exceeded the performance-plan goals and
thus was removed from the plan. Nevertheless, the Appeal
Tribunal found that Zenaro had intentionally violated his
employer's rules and disregarded his employer's
interests by failing to perform in accordance with its
standards after having received progressive discipline. The
Board affirmed the Appeal Tribunal's decision. Zenaro
appeals the Board's decision.
not conduct de novo reviews in unemployment-benefits appeals;
instead, we review the evidence and all reasonable inferences
deducible therefrom in the light most favorable to the
Board's findings of fact. McAteer v. Dir., Dep't
of Workforce Servs., 2016 Ark.App. 52, 481 S.W.3d 776.
The Board's findings of fact are conclusive if supported
by substantial evidence, which is such relevant evidence that
a reasonable mind might accept as adequate to support a
conclusion. Id. Even when there is evidence upon
which the Board might have reached a different decision, the
scope of judicial review is limited to a determination of
whether the Board could have reasonably reached its decision
based on the evidence before it. Id. Credibility
calls are for the finder of fact, as is the weight to be
accorded to testimony. Id.
claimant is disqualified from receiving unemployment benefits
if he or she is discharged from last work for misconduct in
connection with the work. Ark. Code Ann. §
11-10-514(a)(1) (Repl. 2012). Misconduct in connection with
the work shall not be found for instances of poor performance
unless the employer can prove that the poor performance was
intentional. Ark. Code Ann. § 11-10-514(a)(4)(A). It is
the employer's burden to establish misconduct on the part
of the employee by a preponderance of the evidence. Law
Offices of Craig L. Cook v. Dir., 2013 Ark.App. 741, at
7, 431 S.W.3d 337, 341. Typically, misconduct involves
disregard of the employer's interests, violation of the
rules, disregard of the behavior standards rightfully
expected of employees, and disregard for job duties and
obligations. Id. Whether an employee's behavior
is misconduct justifying the denial of unemployment benefits
is a question of fact for the Board to decide. Burch v.
Bassett, 2016 Ark.App. 456, at 3, 503 S.W.3d 852, 854.
is an underlying requirement of intent with misconduct.
Law Offices of Craig L. Cook, supra. Mere
inefficiency, unsatisfactory conduct, poor performances due
to inability or incapacity, inadvertencies, ordinary
negligence in isolated instances, or good-faith errors in
judgment or discretion are not misconduct for purposes of the
statute. Warren v. Dir., 2013 Ark.App. 178, at 3.
Failing to be a productive salesman is not itself misconduct.
Id. at 4.
Board found that Zenaro "intentionally violated his
employer's rules and disregarded its interests" by
failing to meet sales goals after being advised by his
employer that he needed to improve his performance. This
finding is not supported by substantial evidence. Zenaro
testified that he failed to meet sales quotas because, among
other things, he was transferred to a new territory, he spent
limited time in his new sales territory because he was
traveling to and from his home, and his cost of travel proved
difficult to offset. Although Zenaro did not reach his sales
goals, the record does not support the finding that he
manifested an intent to violate his employer's rules or
disregard its interests.
this evidence in the light most favorable to the Board's
findings of fact, we find that reasonable minds could not
reach the conclusion that Zenaro committed misconduct based
on the evidence. Accordingly, we reverse and remand for an
award of benefits.
Harrison and ...