Opinion
No. E 82-148
Opinion delivered January 12, 1983
1. UNEMPLOYMENT BENEFITS — DENIAL IMPROPER UNLESS CLAIMANT HAS HAD OPPORTUNITY TO CONFRONT AND CROSS-EXAMINE WITNESSES. — Unemployment benefits cannot be denied unless a claimant has an opportunity to confront and cross-examine adverse witnesses at an evidentiary hearing. 2. EMPLOYMENT SECURITY — BOARD OF REVIEW CANNOT ACCEPT ADDITIONAL EVIDENCE. — The Board of Review is without jurisdiction to accept additional evidence in appeals pending before it. 3. EMPLOYMENT SECURITY — CONSIDERATION BY BOARD OF REVIEW OF NEW EVIDENCE NOT PRESENTED TO APPEAL TRIBUNAL — REVERSAL REQUIRED. — Where, on appeal from the appeal tribunal's decision, the employer and the claimant submitted additional evidence to the Board of Review, much of which contained matters never presented at the appeal tribunal level, and the Board considered this new evidence in reversing the appeal tribunal's award of benefits, the decision of the Board must be reversed.
Appeal from Employment Security Board of Review; reversed and remanded.
Dan Harmon, for appellant.
Thelma Lorenzo, for appellee.
This is an Employment Security case in which the claimant contends that insufficient evidence existed for the Board of Review to find that claimant's actions constituted misconduct within the meaning of Ark. Stat. Ann. 81-1106 (b) (2) (Repl. 1976). Because of our recent holding in Mark Smith v. Everett, 6 Ark. App. 337, 642 S.W.2d 320 (1982), review denied January 10, 1983, we must remand this case for further proceedings before we can dispose of claimant's argument in this appeal. We note that Mark Smith was decided when the instant case was on appeal.
In Mark Smith v. Everett, supra, the Board of Review reversed the Appeal Tribunal's award of benefits, basing its decision primarily upon an affidavit submitted to the Board by the employer after the Appeal Tribunal decision. We reversed the Board and remanded for a hearing consistent with Leardis Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982), in which the Supreme Court said that benefits cannot be denied unless a claimant has an opportunity to confront and cross-examine adverse witnesses at an evidentiary hearing. We further held in Mark Smith v. Everett, supra, that the Board of Review is without jurisdiction to accept additional evidence in appeals pending before it.
Here, as in the Mark Smith case, the Appeal Tribunal found for the claimant after both the claimant and a representative of the employer testified at a hearing. On appeal from the Appeal Tribunal's decision, the employer and the claimant submitted additional evidence to the Board. The employer submitted letters and copies of business records to support its position that claimant was fired for misconduct in connection with the work. Much of this new evidence contained matters never presented at the Appeal Tribunal level. The claimant and his wife subsequently wrote letters refuting this new evidence. In reversing the Tribunal's award of benefits, the Board in its findings referred to statements submitted by the employer for the first time on appeal. Thus, we must assume that the Board based its decision upon the new evidence — a practice prohibited by our holding in Mark Smith v. Everett.
We therefore reverse the Board's decision and remand consistent with our holding and directions in Mark Smith v. Everett, supra.
Reversed and remanded.