OPINION
FEDERICI, Justice.This is an appeal from the District Court of Santa Fe County. Following a final administrative appeal unfavorable to her claim for unemployment benefits, T. E. Chavez (appellant) petitioned the district court for a writ of certiorari to determine whether she had been discharged from her employment for misconduct as contemplated by Section 51-1-7(B), N.M.S.A.1978 (Repl.Pamp.1981). The petition was granted and the district court held against appellant and for Capital Title Company and the Employment Security Commission (appellees). The ruling of the district court is challenged by appellant in this appeal. We reverse the district court.
The issue on appeal is whether there is substantial evidence to support the appellees that appellant was discharged from her employment for misconduct.
Appellant was discharged from her employment with Capital Title Company for alleged excessive absenteeism. Section 51-1-7(B) provides that:
An individual shall be disqualified for, and shall not be eligible to receive, benefits:
B. if it is determined by the department that he has been discharged for misconduct connected with his work or employment.
Misconduct has been defined as follows:
.. . “misconduct” ... is limited to conduct evincing such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed “misconduct” within the meaning of the statute.
Mitchell v. Lovington Good Samaritan Center, Inc., 89 N.M. 575, 577, 555 P.2d 696, 698 (1976), quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259-60, 296 N.W. 636, 640 (1941).
Whether excessive absenteeism, amounts to misconduct under the general rule stated above depends upon the particular facts in each case. We adopt the following statement as the rule in New Mexico:
[Pjersistent or chronic absenteeism, at least where the absences are without notice or excuse, and are continued in the face of warnings by the employer, constitutes wilful misconduct within [§ 51-1-7(B)],
Annot., 41 A.L.R.2d 1160 (1955). See, e.g., Merkle v. Review Board of Indiana Emp. Sec. Div., 120 Ind.App. 108, 90 N.E.2d 524 (1950).
Whether the judgment of the district court, which had before it the evidence presented to the administrative hearing officer is based on substantial evidence, depends upon whether there is a residuum of legally competent evidence in the record which would support a v.erdict in a court of law. Young v. Board of Pharmacy, 81 N.M. 5, 462 P.2d 139 (1969).
The evidence in this case shows that appellant was discharged from her employment after missing 13 out of 94 working days between September 20, 1977, and February 8, 1978. The reason given for three of the absences was that appellant’s father-in-law, to whom appellant was very close, became gravely ill. On one occasion appellant testified that she had to take her father to a clinic in Albuquerque. The reasons given for the other absences were that appellant had a cold or was not feeling well.
Company policy known to employees at Capital Title was that an employee was expected to be at work every day except in cases of illness or emergency, in which case, the employee was to notify the front desk that the employee would be absent.
Appellant claims that she always gave proper notice when she was going to be absent by calling someone in the office. Appellees dispute appellant’s contention regarding notice. The president of Capital Title testified he was not personally notified by appellant but that he was informed by other employees that appellant did not give notice.
Appellees also claim that appellant was warned about excessive absenteeism. The president of Capital Title testified that he had instructed another employee to warn appellant, but that he had not warned her himself. Appellees also rely on the following statement made by appellant to support their claim that appellant had been warned about excessive absenteeism:
[Wjhere they really held it against me is when in December, when my father-in-law got very sick. He had two heart attacks and’ I was gone, let’s see, Tuesday, Wednesday — three days. I called in each day that I wasn’t going to be in because they wanted the immediate family because we didn’t know whether he was going to make it or not.
And that night, you know, they have a Christmas party and bonuses and everything and just because I wasn’t there he didn’t give me mine.
Viewing the record as a whole, we conclude that there is an absence of legally competent evidence showing that appellant was guilty of misconduct. While the testimony in the record is in conflict as to whether appellant gave proper notice regarding her absences, the testimony favoring appellees is hearsay. Our assessment of appellant’s own statement quoted above, said by appellees to show that she was warned, is that the statement only shows that appellant thought she was not given her Christmas bonus because she was not present at the company Christmas party. The statement quoted above is inadequate to show that appellant was actually warned about excessive absenteeism.
We need not reach the issue of whether appellant’s excuses for missing work were sufficient. Even if some of the excuses she gave were inadequate, any discharge based on inadequate excuses for missing work must be preceded by adequate warning by the employer or his authorized representative that such behavior will not be tolerated.
We hold that there is no substantial evidence in the record to support the Commission’s order and the trial court’s judgment that appellant was discharged from her employment for misconduct.
IT IS SO ORDERED.
SOSA, Senior Justice, and RIORDAN, J., concur. EASLEY, C. J., and PAYNE, J., dissenting.