Opinion
No. 76-P-128, CA 6926
Argued January 18, 1977.
Reversed and remanded January 31, 1977.
Judicial review from Employment Appeals Board.
Alex L. Parks, Portland, argued the cause for petitioner. With him on the brief were White, Sutherland, Parks Allen, Portland.
Donald S. Richardson, Portland, argued the cause for respondent Stanley E. Kezar. With him on the brief were Richardson, Murphy Nelson, Portland.
No appearance for respondent Employment Division.
Before Schwab, Chief Judge, and Tanzer and Richardson, Judges.
PER CURIAM.
Reversed and remanded.
The issue is whether the employer had good cause to terminate claimant's employment. The employer contends that the administrative determinations of the referee and Appeals Board applied an erroneous standard in finding no good cause "due to lack of conclusive proof." This contention is correct. We are not aware of any standard of proof so denominated, and have no idea from this terminology what standard the referee and Appeals Board were purporting to apply. Since this is a civil matter and since there is no statutory mandate to the contrary there is no reason why the usual standard should not apply. Babcock v. Employment Div., 25 Or. App. 661, 664, 550 P.2d 1233 (1976). It therefore follows that the employer, as the moving party in this case, had the burden of proving his case by a preponderance of the evidence. However, contrary to the employer's position, it does not follow that we should rule in favor of the employer for there is evidence in the record which would support a finding for or against the employer on the dispositive issue.
Reversed and remanded for further proceedings consistent with this opinion.