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Tank v. Heartland Conservation Services, Inc.

Court of Appeals of Minnesota

July 29, 2013

Jason J. Tank, Relator,
v.
Heartland Conservation Services, Inc., Respondent, Department of Employment & Economic Development, Respondent.

UNPUBLISHED OPINION

Department of Employment & Economic Development File No. 29877000-3

Jasper Berg, IAJ Law, LLC, Woodbury, Minnesota (for relator)

Heartland Conservation Services, Inc., Alexandria, Minnesota (respondent employer)

Lee B. Nelson, Minnesota Department of Employment & Economic Development, St. Paul, Minnesota (for respondent department)

Considered and decided by Connolly, Presiding Judge; Worke, Judge; and Kirk, Judge.

WORKE, Judge

In this certiorari appeal from a decision by an unemployment-law judge (ULJ) that relator was ineligible for unemployment benefits because he was discharged for misconduct for using company equipment and labor to perform work on relator's own property, relator argues that he had permission to use company resources, that his conduct fell within an exception for reasonable errors of judgment, and that the ULJ's findings were not supported by law or substantial evidence. We affirm.

FACTS

Relator Jason Tank was employed by respondent Heartland Conservation Services, Inc. (Heartland) beginning in June 2004. Relator worked as a project manager and supervised employees. Relator's cousin, Terry Tank, is the owner and manager of Heartland. In April 2012, relator directed two new employees to plant trees on land that relator owned. After an employee showed Tank photographs of the tree-planting operation, relator was informed via text message that he was terminated from employment.

Relator applied for unemployment insurance benefits, and was found eligible. Heartland appealed the determination, asserting that relator was terminated for employment misconduct because he stole from the company. At a telephone hearing before a ULJ, Tank appeared as the representative of Heartland, and relator appeared and was represented by counsel.

At the hearing, Tank testified that relator stole 1, 425 trees valued at $10, 875 and six hours of employee labor. Tank testified that these figures were estimates based on the number of trees he believed were ordered but not billed to anyone else, and based on the amount of time it should have taken those employees to plant that number of trees. Tank admitted that after learning about the incident, he terminated relator without ever speaking to him.

Relator admitted that he lacked permission to use two Heartland employees to plant trees on his land, but stated that he believed it was a permissible use of company resources as a training exercise. Relator stated he thought he and Tank had an agreement that allowed him to use company resources without requesting permission and that he witnessed Tank using company employees and equipment on Tank's own property multiple times. Relator stated that he did not intend to invoice the company for labor costs.

Regarding the theft of trees, relator testified that he planted only 775 trees valued at $330 on his property. An invoice was generated for the trees, and relator intended to pay for their value. Relator submitted a copy of the work order and invoice to the ULJ. Relator testified that Tank must have known about his tree order because an invoice was created for it, and only Tank had access to the accounting software to create the invoice. Relator submitted affidavits from two former employees who stated that the invoicing system was password protected for Tank's sole use. Tank denied that he created the invoice and insisted that ...


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