DIVISION III

RENA A. BELCHER

APPELLANT

V.

DIRECTOR, EMPLOYMENT

SECURITY DEPARTMENT AND

TYSON POULTRY

APPELLEES

E 04-387

APRIL 6, 2005

APPEAL FROM THE BOARD OF

REVIEW, [NO. 2004-BR-01942]

REVERSED AND REMANDED

John B. Robbins, Judge

Rena Belcher has appealed from a decision of the Board of Review, which held that Belcher was disqualified from receiving unemployment compensation because she had been discharged from her last work for misconduct in connection with the work. This decision reversed the decisions of the Department and Appeal Tribunal that allowed Belcher benefits. We reverse the Board of Review.

Belcher was employed as a production worker for Tyson Poultry, Inc. During her last eight months of employment she was absent eighteen times. Paula Moore, Tyson's human resources clerk, testified that Belcher was discharged for absenteeism. Moore stated that whenever an employee misses a day an occasion point is accrued; that being off work for illness only accrues one point even if the employee misses consecutive days during a single illness; and that Belcher had accumulated eighteen points. Moore's testimony was based solely on Tyson's records, which reflected that Belcher had called in on each of her eighteen absences, but that Belcher only reported to be sick on the eighteenth, and final, absence.

While an employer may be justified under its personnel policies in discharging an employee, the employee is not disqualified from entitlement to benefits unless the reason for discharge constitutes misconduct in connection with the work. Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2002). The burden is on the employer to show by a preponderance of the evidence that the employee's conduct constitutes such misconduct. Feagin v. Everett, 9 Ark. App. 59, 652 S.W.2d 839 (1983). We discussed the matter of misconduct in Oliver v. Director, 80 Ark. App. 275, 94 S.W.3d 362 (2002):

Arkansas Code Annotated section 11-10-514(a)(1) (Repl. 2002) provides in relevant part that an individual will be disqualified for benefits if discharged from work for misconduct in connection with that work. For the purposes of unemployment compensation, misconduct is defined as (1) disregard of the employer's interest; (2) violation of the employer's rules; (3) disregard of the standards of behavior which the employer has the right to expect; and (4) disregard of the employee's duties and obligations to the employer. Rucker v. Price, 52 Ark. App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Fulgham v. Director, Employment Sec. Dep't, 52 Ark. App. 197, 918 S.W.2d 186 (1996). Therefore, for an individual's actions to constitute misconduct sufficient to disqualify him or her from benefits, the actions must be deliberate violations of the employer's rules or acts of wanton or willful disregard of the standard of behavior that the employer has a right to expect of its employees. Kimble v. Director, Ark. Empl. Sec. Dep't, 60 Ark. App. 36, 959 S.W.2d 66 (1997). When an individual is discharged for absenteeism, "the individual's attendance record for the twelve-month period immediately preceding the discharge and the reasons for the absenteeism shall be taken into consideration for purposes of determining whether the absenteeism constitutes misconduct." Ark. Code Ann. § 11-10-514(a)(2) (Repl. 2002).

Id. at 278-79, 94 S.W.3d at 365.

We are obliged to affirm the decision of the Board of Review if there is any substantial evidence to support its findings. Id. The record before us permits no finding but that the event that triggered Belcher's discharge was her absence of July 7, 2004, when she accrued her eighteenth occurrence point. Furthermore, Tyson's human resources clerk Moore acknowledged that on that occasion Belcher called in sick. Moore did not testify thatTyson management believed that Belcher was untruthful about being too ill to work that day, but rather that this constituted Belcher's eighteenth point.

An absence due to illness lacks the element of deliberate and intentional disregard of an employer's rules or standard of behavior that the employer has a right to expect of its employees so as to constitute misconduct. In the absence of any evidence that the employer did not believe Belcher was indeed too ill to work, there is no evidence to support a finding that Belcher was discharged for misconduct.

We reverse and remand for an award of appropriate benefits.

Pittman, C.J., and Neal, J., agree.