Donald L. Corbin, Judge.
In this unemployment compensation case the Board of Review reversed the Appeal Tribunal’s decision and denied benefits on the ground that appellant was discharged for misconduct. It based its decision on a finding that claimant had exhibited a poor attitude in his dealings with the employer’s customers to such a degree as to constitute misconduct.
Appellant worked as a parking attendant for Allright Parking at the Union National Bank Building for over nine and one-half years. He was dismissed on February 12 for misconduct after the building maintenance department received a written complaint from a customer accusing him of “giving her a nasty look and squealing her tires”.
The agency denied benefits on the ground of misconduct and appellant appealed. A hearing was held at which only appellant appeared. He presented testimony to the effect that he had not been warned that his behavior was offensive or inappropriate and to the best of his knowledge he had received very few complaints. The Appeal Tribunal awarded benefits. The employer appealed by letter requesting that another hearing be held because they wished to offer additional evidence. Attached to the employer’s letter were two letters and two affidavits.
The Board of Review remanded the case to the Appeal Tribunal level with directions to schedule another hearing for the purpose “of taking the testimony from either or all parties who appear to give testimony.” Another hearing was held at which appellant and the employer’s attorney appeared. The employer himself did not appear. At the hearing the employer’s attorney submitted affidavits from two customers accusing appellant of discourtesies. One of the affiants was the customer who had submitted the complaint which initiated appellant’s dismissal on Feb. 12. The other affiant complained that on December 22, appellant had used obscenities and had threatened him. The attorney also submitted an affidavit signed by the employer. The Board of Review disqualified appellant from receiving benefits for a period of eight weeks of employment on the ground that claimant had been discharged from his last work for misconduct in connection with the work [Section 5 (b) (1)]. The Board of Review also reduced claimant’s maximum benefit amount by eight times the weekly benefit amount but not to an amount which is less than the weekly benefit amount pursuant to Section 3 (d).
On appeal to this court the appellant is for the first time represented by counsel and he raises two issues: (1) the proceedings of the Employment Security Division were not conducted in such a way as to ascertain the substantial rights of the appellant and (2) there is no substantial evidence to support the Board’s finding that claimant was discharged for misconduct in connection with the work.
First, we shall deal with the issue of the adequacy of the proceedings. The appellant contends that the Board’s decision is based on evidence which should not have been allowed in that the employer’s attorney allowed himself to be sworn as a witness and testified in violation of the American Bar Association’s Code of Professional Responsibility. Appellant contends that the disparity between appellant’s position as an unrepresented party and Allright’s position with its attorney testifying as a witness created such a gross imbalance in power and effect that appellant’s burden of persuasion was made unreasonably heavy and made it impossible to have correctly ascertained the substantial rights of the claimant.
It is difficult to say from the record whether appellee’s attorney was actually sworn as a witness. When asked by the referee if he would be testifying as a witness, the attorney responded that his testimony might not be admissible because of its hearsay nature and he indicated that his purpose at the hearing was to present affidavits. The referee later stated that there are no personal witnesses for the employer. We wish to reiterate strongly our disapproval of an attorney testifying in an action in which he is an advocate. An attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action. Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977). The fact that the employer’s attorney may have allowed himself to be sworn, although improper, would not under the present fact situation be grounds for reversal.
Next, appellant complains that his right to due process was denied because he did not have the opportunity to confront and cross-examine adverse witnesses. As previously stated, the employer’s attorney presented three affidavits at the hearing which the Board of Review relied upon in their findings of fact. Appellant contends that the Arkansas Supreme Court’s decision in Leardis Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982), requires that he be given an opportunity to cross-examine these affiants and the Board’s failure to afford him that opportunity denied him his right to due process. In Leardis Smith v. Everett, supra, the Arkansas Supreme Court addressed two issues: first, the admissibility of hearsay evidence and the weight to be afforded it, and, second, the requirements of due process in administrative proceedings. In that case, the Supreme Court reversed the Court of Appeals in Leardis Smith v. Everett, 4 Ark. App. 197, 629 S.W.2d 309 (1982). The Supreme Court’s decision held that Woods v. Daniels, 269 Ark. 613, 599 S. W.2d 435 (Ark. App. 1980), which stated that hearsay alone was not substantial evidence is contrary to the decision in Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S.W.2d 826 (1958), and firmly established the rule in unemployment compensation cases that hearsay alone can constitute substantial evidence.
In Smith v. Everett, supra, the Supreme Court also addressed the issue of claimant’s right to cross-examine adverse witnesses under due process of law. The Court relied on the United States Supreme Court case of Goldberg v. Kelly, 397 U.S. 254 (1980), wherein the following language is found:
The fundamental requisite of due process of law is the opportunity to be heard. ... In the present context these principles require that the recipient have timely and adequate notice detailing the reason for a purposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments in evidence orally.
In Smith v. Everett, supra, the Supreme Court reversed the Board of Review’s decision because “the minimum requirements for due process of law” were not met as the petitioner did not have an opportunity to subpoena and cross-examine adverse witnesses at an evidentiary hearing.
The concept of hearsay evidence presupposes that the declarant is not present and availablé for cross-examination.
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Donald L. Corbin, Judge.
In this unemployment compensation case the Board of Review reversed the Appeal Tribunal’s decision and denied benefits on the ground that appellant was discharged for misconduct. It based its decision on a finding that claimant had exhibited a poor attitude in his dealings with the employer’s customers to such a degree as to constitute misconduct.
Appellant worked as a parking attendant for Allright Parking at the Union National Bank Building for over nine and one-half years. He was dismissed on February 12 for misconduct after the building maintenance department received a written complaint from a customer accusing him of “giving her a nasty look and squealing her tires”.
The agency denied benefits on the ground of misconduct and appellant appealed. A hearing was held at which only appellant appeared. He presented testimony to the effect that he had not been warned that his behavior was offensive or inappropriate and to the best of his knowledge he had received very few complaints. The Appeal Tribunal awarded benefits. The employer appealed by letter requesting that another hearing be held because they wished to offer additional evidence. Attached to the employer’s letter were two letters and two affidavits.
The Board of Review remanded the case to the Appeal Tribunal level with directions to schedule another hearing for the purpose “of taking the testimony from either or all parties who appear to give testimony.” Another hearing was held at which appellant and the employer’s attorney appeared. The employer himself did not appear. At the hearing the employer’s attorney submitted affidavits from two customers accusing appellant of discourtesies. One of the affiants was the customer who had submitted the complaint which initiated appellant’s dismissal on Feb. 12. The other affiant complained that on December 22, appellant had used obscenities and had threatened him. The attorney also submitted an affidavit signed by the employer. The Board of Review disqualified appellant from receiving benefits for a period of eight weeks of employment on the ground that claimant had been discharged from his last work for misconduct in connection with the work [Section 5 (b) (1)]. The Board of Review also reduced claimant’s maximum benefit amount by eight times the weekly benefit amount but not to an amount which is less than the weekly benefit amount pursuant to Section 3 (d).
On appeal to this court the appellant is for the first time represented by counsel and he raises two issues: (1) the proceedings of the Employment Security Division were not conducted in such a way as to ascertain the substantial rights of the appellant and (2) there is no substantial evidence to support the Board’s finding that claimant was discharged for misconduct in connection with the work.
First, we shall deal with the issue of the adequacy of the proceedings. The appellant contends that the Board’s decision is based on evidence which should not have been allowed in that the employer’s attorney allowed himself to be sworn as a witness and testified in violation of the American Bar Association’s Code of Professional Responsibility. Appellant contends that the disparity between appellant’s position as an unrepresented party and Allright’s position with its attorney testifying as a witness created such a gross imbalance in power and effect that appellant’s burden of persuasion was made unreasonably heavy and made it impossible to have correctly ascertained the substantial rights of the claimant.
It is difficult to say from the record whether appellee’s attorney was actually sworn as a witness. When asked by the referee if he would be testifying as a witness, the attorney responded that his testimony might not be admissible because of its hearsay nature and he indicated that his purpose at the hearing was to present affidavits. The referee later stated that there are no personal witnesses for the employer. We wish to reiterate strongly our disapproval of an attorney testifying in an action in which he is an advocate. An attorney who is to testify in an action should withdraw from the litigation. On the other hand, if an attorney is going to serve as an advocate for his client, he should refrain from testifying in the action. Enzor v. State, 262 Ark. 545, 559 S.W.2d 148 (1977). The fact that the employer’s attorney may have allowed himself to be sworn, although improper, would not under the present fact situation be grounds for reversal.
Next, appellant complains that his right to due process was denied because he did not have the opportunity to confront and cross-examine adverse witnesses. As previously stated, the employer’s attorney presented three affidavits at the hearing which the Board of Review relied upon in their findings of fact. Appellant contends that the Arkansas Supreme Court’s decision in Leardis Smith v. Everett, 276 Ark. 430, 637 S.W.2d 537 (1982), requires that he be given an opportunity to cross-examine these affiants and the Board’s failure to afford him that opportunity denied him his right to due process. In Leardis Smith v. Everett, supra, the Arkansas Supreme Court addressed two issues: first, the admissibility of hearsay evidence and the weight to be afforded it, and, second, the requirements of due process in administrative proceedings. In that case, the Supreme Court reversed the Court of Appeals in Leardis Smith v. Everett, 4 Ark. App. 197, 629 S.W.2d 309 (1982). The Supreme Court’s decision held that Woods v. Daniels, 269 Ark. 613, 599 S. W.2d 435 (Ark. App. 1980), which stated that hearsay alone was not substantial evidence is contrary to the decision in Bockman v. Ark. State Medical Board, 229 Ark. 143, 313 S.W.2d 826 (1958), and firmly established the rule in unemployment compensation cases that hearsay alone can constitute substantial evidence.
In Smith v. Everett, supra, the Supreme Court also addressed the issue of claimant’s right to cross-examine adverse witnesses under due process of law. The Court relied on the United States Supreme Court case of Goldberg v. Kelly, 397 U.S. 254 (1980), wherein the following language is found:
The fundamental requisite of due process of law is the opportunity to be heard. ... In the present context these principles require that the recipient have timely and adequate notice detailing the reason for a purposed termination, and an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments in evidence orally.
In Smith v. Everett, supra, the Supreme Court reversed the Board of Review’s decision because “the minimum requirements for due process of law” were not met as the petitioner did not have an opportunity to subpoena and cross-examine adverse witnesses at an evidentiary hearing.
The concept of hearsay evidence presupposes that the declarant is not present and availablé for cross-examination. However, the rule in Arkansas permitting the admission of hearsay evidence and the holding that hearsay evidence alone can constitute substantial evidence necessarily implies that the admission of hearsay evidence does not in and of itself violate one’s right to due process. The question now before this court is how must hearsay evidence be presented and in what form of proceeding so as to protect the due process rights of parties as they relate to confrontation and cross-examination of adverse witnesses.
First, a party must know of or have an opportunity to know what evidénce is being considered. In Greene v. McElroy, 360 U.S. 474 (1959), the United States Supreme Court made the following statement:
Certain principles have remained relatively immutable in our jurisprudence. One of these is that where government action seriously injures an individual, and the reasonableness of. the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.
This court stated in Brown Jordan v. Dukes, 269 Ark. 581, 600 S.W.2d 21 (Ark. App. 1980):
It is clear to us that the statute [Ark. Stat. Ann. § 81-1107 (d) (3) (Repl. 1976)] does not permit the board to consider evidence of which a party has not been apprised.
Second, when hearsay evidence has been submitted to the fact-finding body, a party must have the right of a rehearing for the purpose of subpoenaing and cross-examining adverse witnesses. In Davis v. Industrial Commission, 103 Ariz. 114, 437 P.2d 647 (1968), the Arizona Supreme Court held: “The very existence of the right to apply for a rehearing vouchsafes his right to a fair hearing on the merits.” In Smith v. Everett, supra, the Supreme Court pointed out that the petitioner had been informed that another hearing could not be held; thus, he was refused the opportunity to confront and cross-examine his adverse witnesses.
Having set forth some of the requirements of due process when hearsay evidence is received by the Employment Security Agency, we turn to the facts at bar. Here, the affidavits complained of were admitted and read into the record at the second hearing at which the appellant was present. Appellant replied to the charges contained in the affidavits but he did not request another hearing so that the affiants could be present and cross-examined.
In Richardson v. Perales, 402 U.S. 389 (1971), the Supreme Court addressed the petitioner’s need to request an opportunity to cross-examine adverse witnesses. In that case the claimant complained that he did not have an opportunity to cross-examine a physician who had prepared a medical report adverse to his claim for disability benefits. The medical report had been admitted and was in claimant’s file. The Supreme Court stated:
Although the claimant complains of the lack of opportunity to cross-examine the reporting physicians, he did not take advantage of the opportunity afforded him under 20 CFR § 404.926 to request subpoenas for the physicians. . . . This inaction on the claimant’s part supports the Court of Appeals’ view that the claimant as a consequence is to be precluded from now complaining that he was denied the rights of confrontation and cross-examination.
In Davis v. Industrial Commission, supra, the Arizona Court distinguished the right to cross-examine from the opportunity to cross-examine.
We emphasize here that the right to cross-examine witnesses in a proceeding before the Industrial Commission must be distinguished from the opportunity to cross-examine to the extent that though the right can be waived by the claimant, the opportunity cannot be restricted or denied claimant by the Commission. With that being the framework of inquiry, the question is whether an opportunity to cross-examine has been denied the claimant in this case.
We affirm petitioner’s right of cross-examination but note that petitioner had notice of the doctor’s statement and made no request for further hearing to cross-examine.
We hold that claimant must designate the witnesses upon which he wishes to exercise the right of cross-examination.
Although this question has not been addressed within the confines of unemployment compensation benefits, the Arkansas Supreme Court has held that in workers’ compensation cases, it was not error on the part of the Commission for failing to allow cross-examination when it was not asked to do so. Plants v. Townsend Curtner Lumber Co., 247 Ark. 824, 448 S.W.2d 349 (1969).
We hold that procedural due process requirements were met in the case at bar and the proceedings were conducted in such a manner as to ascertain the substantial rights of the parties as required by Ark. Stat. Ann. § 81-1107 (d) (4).
We now turn to appellant’s second issue of whether there is substantial evidence to support the Board’s finding that claimant was discharged for misconduct in connection with the work. In this case the Board specifically determined:
As the employer’s business to a large extent depends on the customer’s trust of the employer’s agent and employee, any belligerent expression or statement would of necessity diminish that trust and confidence that the employer had a right to expect their employee to promote among the customers.
Appellant admitted to having received customer complaints although he contends that he had been exonerated by his employer for his actions. In its decision, the Board relied on appellant’s testimony as well as the affidavits of the two customers who had complained concerning appellant’s behavior.
“Misconduct which precludes benefits under the Employment Security Law contemplates willful or wanton disregard of an employer’s interest or is manifested in the deliberate violation or disregard of those standards of behavior which the employer has a right to expect from his employee.” Hodges v. Producers Rice Mill, 270 Ark. 188, 603 S.W.2d 479 (Ark. App. 1980). 1
In appellate review under Ark. Stat. Ann. § 81-1107 (d) (7), which makes findings of the Board of Review, as to the facts, conclusive, if supported by evidence and in the absence of fraud, and confining judicial review to questions of law, we must give the successful party the benefit of every inference that can be drawn from the testimony, viewing it in the light most favorable to the successful party, if there is any rational basis for the board’s findings based on substantial evidence. Harris v. Daniels, 263 Ark. 897, 567 S.W.2d 954 (1978).
We affirm the Board’s finding that claimant was discharged from his last work for misconduct in connection with the work.
The Board, however, made another finding which we do not affirm. The last sentence in the Board’s decision says, “If an overpayment has occurred, the claimant shall be liable to repay the Fund under the provision of Section 6 (f) (2) of the Arkansas Employment Security Law.” If appellant has been paid benefits to which he was not entitled, due process requires that his liability to repay the amount so received must be determined after he has been afforded the opportunity of a hearing, after proper notice, upon all the issues set out in Ark. Stat. Ann. § 81-1107 (f) (2) (Supp. 1981). Since all those issues were not involved in this proceeding, the Board’s finding of liability to repay is reversed and remanded. Pritchett v. Director of Labor, 5 Ark. App. 194, 634 S.W.2d 397 (1982).
Affirmed in part and reversed and remanded in part.
Cooper, Cloninger and Glaze, JJ., dissent.