Oswald v. Dir. Dep't of Workforce Servs. (Majority)
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Cite as 2012 Ark. App. 676 ARKANSAS COURT OF APPEALS DIVISION III No. E12-350 Opinion Delivered November WANDA J. OSWALD 28, 2012 APPELLANT APPEAL FROM THE ARKANSAS BOARD OF REVIEW [NO. 2012-BR-00746] V. DIRECTOR, DEPARTMENT OF WORKFORCE SERVICES AND BELK CONWAY COMMONS APPELLEES REMANDED FOR ADDITIONAL EVIDENCE RAYMOND R. ABRAMSON, Judge Wanda Oswald was employed as a sales associate for Belk Conway Commons until she was discharged for absenteeism. The Department of Workforce Services (Department) initially granted unemployment benefits, holding that the reasons for Oswald s absences were beyond her control and that she had made the proper notifications to her employer; thus, her conduct did not constitute deliberate and willful intent against the interest of the employer. Her employer appealed to the Appeals Tribunal (Tribunal). Neither Oswald nor her employer was present at the hearing before the Tribunal. As a result, based on the record before it, the Tribunal reversed the decision of the Department, finding that Oswald was aware of the attendance policy, had received progressive discipline regarding her attendance, and had continued to be absent. Therefore, the Tribunal found that she was discharged from her last work for misconduct in connection with the work and denied her benefits. Cite as 2012 Ark. App. 676 The decision of the Tribunal was issued on February 13, 2012, and Oswald had until March 5, 2012, to appeal the decision. The record reflects that Oswald filed her notice of appeal to the Board of Review (Board) on March 7, 2012 two days past the deadline. At the Paulino1 hearing, however, Oswald alleged that she had appealed the decision prior to the deadline (although she could not remember the exact date) and that she was called by someone from the Department a couple of days later and told that she had been given the wrong form. She stated that she then went back to the office and filled out the correct forms. The Board found that her appeal was untimely based on the documents in the record and the testimony from the hearing. On appeal, Oswald provides us with a copy of a form signed on March 5, 2012, which purports to be a document requesting an appeal to the Tribunal and which presumably is the erroneous form she filled out prior to the deadline. This document supports her version of events, but it is inexplicably absent from the record before the Board. Arkansas Code Annotated section 11-10-529(c)(2)(a)(Repl. 2012), provides the following: No additional evidence shall be received by the court, but the court may order additional evidence to be taken before the board. Because this document was attached to Oswald s petition and is absent from the record, we are prohibited from considering it. However, because it appears this document was improperly omitted from the record before the Board, we remand for the consideration of additional evidence in light of this information. Remanded for additional evidence. ROBBINS and GLOVER, JJ., agree. 1 Paulino v. Daniels, 269 Ark. 676, 599 S.W.2d 760 (Ark. App. 1980). 2
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