ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

JOSEPH B. JONES, JR.

APPELLANT

V.

DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES and Smurfit-Stone Container Enterprises, Inc.

APPELLEES

E05-187

January 25, 2006

APPEAL FROM THE ARKANSAS BOARD OF REVIEW

[NO. 2005-BR-1025]

REVERSED AND REMANDED

Josephine Linker Hart, Judge

Appellant, Joseph B. Jones, Jr., appeals from the decision of the Arkansas Board of Review in which the Board denied him unemployment compensation benefits after it found that he was discharged from his employment with appellee Smurfit-Stone Container Enterprises, Inc., for misconduct connected with his work. Particularly, the Board found that appellant's employer discharged him for absenteeism, which involved chronic tardiness resulting principally from long-term childcare problems; that the absenteeism was substantially within appellant's control; and that the grounds involved appellant's willful disregard of the employer's interests, intentional violation of the employer's rules, and willful disregard of appellant's duties and obligations to the employer. We, however, reverse and remand for an award of benefits.

Our statutes provide that an individual is disqualified for benefits if he is discharged

"for misconduct in connection with the work." Ark. Code Ann. § 11-10-514(a)(1) (Repl. 2002). Further, our statutes provide that "[i]n all cases of discharge for absenteeism ... 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). We have previously noted that misconduct involves (1) disregard of the employer's interests, (2) violation of the employer's rules, (3) disregard of the standards of behavior which the employer has a right to expect of his employees, and (4) disregard of the employee's duties and obligations to his employer. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). But to constitute misconduct, it must be more than mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies, ordinary negligence in isolated instances, or good faith error in judgment or discretion. Id. Rather, there must be an intentional or deliberate violation, a willful or wanton disregard, or carelessness or negligence of such degree or recurrence as to manifest wrongful intent or evil design. Id. On appeal, the findings of the Board are conclusive if they are supported by substantial evidence. Id.

We note that as appellant's employer did not participate in the hearing held before the Arkansas Appeal Tribunal, only appellant presented evidence. In its decision, the Board stated that the weight of the evidence established that the employer discharged appellant for excessive absenteeism involving chronic tardiness resulting principally from long-term childcare problems and that the excessive absenteeism was substantially within appellant's control. The Board, however, did not note, and the record of the hearing does not disclose, evidence indicating that appellant's inability to obtain consistent childcare established his intentional violation of the rules so as to manifest wrongful intent or evil design. Consequently, we hold that the Board's finding that appellant was discharged for misconduct is not supported by substantial evidence, as there was no evidence presented that he ever intentionally violated the rules so as to manifest wrongful intent or evil design.

Reversed and remanded.

Glover and Baker, JJ., agree.