(dissenting).
There are two reasons I must dissent from the majority opinion. First, the majority’s analysis implies that the employee has the burden of proof in demonstrating that misconduct did not occur. This is wrong.
The Iowa Administrative Code states: Allegations of misconduct or dishonesty without additional evidence shall not be sufficient to result in disqualification. If the employer is unwilling to furnish *196available evidence to corroborate the allegation misconduct cannot be established.
370 Iowa Admin.Code 4.32(4) (1986). We have emphatically interpreted this section of the administrative code as placing the burden of proving allegations of misconduct upon the employer. Harlan v. Iowa Department of Job Service, 350 N.W.2d 192, 194 (Iowa 1984); Cosper v. Iowa Department of Job Service, 321 N.W.2d 6, 11 (Iowa 1982); Floyd v. Iowa Department of Job Service, 338 N.W.2d 536, 538 (Iowa Ct.App.1983). We look at the agency’s decision as a whole to determine if the burden of proof was misallocated. Harlan, 350 N.W.2d at 195.
The issue presented to us is not whether Ray’s overall poor employment record prior to the October 31 absence was sufficient reason to find misconduct on his part. The Iowa Administrative Code provides:
While past acts and warnings can be used to determine the magnitude of a current act of misconduct, a discharge for misconduct cannot be based on such act or acts. The termination of employment must be based on a current act.
370 Iowa Admin.Code 4.32(8) (1986). The employer claimed that the October 31 absence was the current act of misconduct that triggered the discharge. The hearing officer stated, “The event that triggered his discharge was his absence of October 31, 1982, which was an unexcused absence because of personal business (moving), which is misconduct within the meaning of Section 96.5-2-1 of the Iowa Code as above defined.” The district court stated, “It appears from this record, and the petitioner admits, that he told the company representative that his reason for being off work on October 31, 1982 was personal; he was moving. This would amount to an unexcused absence.” Therefore, the issue presented to us is whether the respondent carried its burden of proving that Ray’s absence on October 31 was misconduct as defined by Job Service rules.
I do not believe there is substantial evidence in the record as a whole that respondent carried its burden of proof in showing that the October 31 absence was misconduct. Iowa has adopted the inference that:
Where it is apparent that a party has the power to produce evidence of a more explicit, direct, and satisfactory character than that which he does introduce and relies on, it may be presumed that if the more satisfactory evidence had been given it would have laid open deficiencies in, and objections to, his case which the more obscure and uncertain evidence did not disclose.
31A C.J.S. Evidence § 156(1) (1964); Crasser v. Iowa Department of Public Safety, 240 N.W.2d 682, 685 (Iowa 1976); Quint-Cities Petroleum Co. v. Maas, 259 Iowa 122, 127, 143 N.W.2d 345, 348 (1966). Although this inference is most useful in weighing the evidence, we also believe that such an inference assists our examination of the substantiality of the evidence. The bare fact of the security guard having written “moving” on the paper is made qualitatively less effective by the failure of respondents to produce relevant witnesses which would have provided more satisfactory evidence. This same inference is ineffective against Ray since where the party upon whom the burden of proof vests fails to make out a prima facie case, no presumption arises from the failure of the other party to present evidence peculiarly within his knowledge. 31A C.J.S. § 156 (1964); see, e.g., United States v. Cherkasky, 259 F.2d 89 (3rd Cir.1958). Respondent does not dispute the greater part of Ray’s testimony. Respondent did not produce the security guard to testify as to his evaluation of Ray’s manner or as to any other information that Ray might have given the guard. Respondent did not produce Mike Berry to challenge Ray’s testimony that Ray had informed Berry of the previous day’s illness. Respondent did not produce Larry Turner to refute Ray’s testimony that Ray informed Turner of the illness. Respondent claims that the reason Turner was not called was because Ray did not testify at the initial hearing on January 10, 1983, that he had spoken to Turner. Respondent’s brief states:
*197There seems no reason for the employer to call Turner as a witness absent any information that his knowledge would be in issue. If that were the case, perhaps an employer would be required to call an employee in order to anticipate the necessity to prove that a particular thing did not occur.
This argument is disingenuous. Before Ray’s shift began, Turner was the temporary foreman in charge to whom Ray could have been expected to report. His testimony that Ray did not call him or tell him that Ray was moving would have been much more satisfactory evidence than the guard’s absentee report. By not calling those witnesses employed by the company and presumably having some loyalty to the company, respondent chose to rely solely on the security guard’s notation. I think this single notation, by itself, and in the context of the evidence presented by Ray, does not constitute substantial evidence of misconduct on Ray’s part.
The second reason I must dissent is that once again the “last straw” doctrine is utilized as a technique of deferring to the employer’s determination of misconduct. The majority says the October 31 incident was “the straw that broke the camel’s back,” apparently regardless of whether the last act was misconduct itself. I believe that even though a current act may constitute unsatisfactory conduct for the purposes of termination, such an act must be misconduct per se for the disqualification of unemployment benefits. The employer is in the position of deciding when the third, fourth, fifth, etc., act is enough to provide a basis for termination. Our judicial review system must decide if that last act is misconduct in order to deny unemployment benefits. Without this “bright line” determination, the Job Service is doing nothing more than rubber stamping the employer’s determination of when one of any number of acts of unsatisfactory conduct is misconduct.
For the foregoing reasons, I must dissent.