Department of Employment and Economic Development File No. 4928 03
Considered and decided by Schumacher, Presiding Judge; Willis, Judge;
and Wright, Judge.
The opinion of the court was delivered by: Robert H. Schumacher, Judge
Affirmed ; motion granted
Relator Sadat Mahamed challenges the decision of the commissioner's representative that he was disqualified from receiving unemployment benefits because he was terminated for employment misconduct. Mahamed also moved for expedited release of the opinion in this matter. We affirm and grant Mahamed's motion.
Mahamed worked as a shift press helper for Anagram International, Inc. from August 2001 until February 2003. In February 2003, Mahamed was injured in a worksite accident. Mahamed's doctor initially ordered Mahamed not to work from February 10, 2003, through February 12, 2003. Anagram's human resource manager, Cheryl Regenauer, testified Mahamed met with her on February 11, and he informed her that he would return to work on February 14, 2003.
Mahamed was scheduled to work February 14, 15, and 16, but he did not report for those shifts or notify anyone at Anagram that he would be absent. Anagram's policy provides that an employee who fails to call in or show for work for three consecutive work days has voluntarily resigned. Mahamed contends he did not go to work because, on February 12, 2003, he received additional work restrictions prohibiting him from working until February 18. Regenauer testified that Mahamed never informed her or anyone at Anagram of the additional work restrictions until he was notified of his"voluntary resignation" on February 18.
The commissioner's representative determined that Anagram terminated Mahamed's employment but found Mahamed's behavior"evinced an intentional disregard of his duties and obligations to the employer and lack of concern for his employment." The commissioner's representative concluded Mahamed's behavior was employment misconduct under Minn. Stat. § 268.095, subd. 6 (2002), and thus disqualified him from receiving unemployment benefits.
Decisions of the commissioner's representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). The commissioner's representative's factual findings are viewed in the light most favorable to the decision and are not disturbed if evidence in the record reasonably tends to sustain them. Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996). Whether an employee committed alleged acts of employment misconduct is a question of fact, but whether the acts constitute misconduct is a question of law, which we review de novo. Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).
An employee who is discharged for engaging in employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.069, subd. 1(2),.095, subd. 4(1) (2002). At the time of his discharge, employment misconduct was defined as"any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer." Minn. Stat. § 268.095, subd. 6(a)(1) (2002). An employee who fails to report to work or provide the employer with notice that the employee is unable to work a scheduled shift has committed employment misconduct. See Peske v. Fairview-Southdale Hosp., 512 N.W.2d 913, 916 (Minn. App. 1994) (applying pre-1999 definition of employment misconduct).
Viewing the evidence in the light most favorable to the decision of the commissioner's representative, we conclude that the factual findings of the representative that Mahamed was discharged because he did not call in or report for work when scheduled is reasonably supported by the evidence. The failure to call in or report to work constitutes employment misconduct under Minn. Stat. § 268.095, subd. 6(a). ...