Mathews v. L & M Radiator Inc., No. A04-2329 (MN 8/30/2005), A04-2329.
| Decision Date | 30 August 2005 |
| Docket Number | No. A04-2329.,A04-2329. |
| Court | Minnesota Supreme Court |
| Parties | Joseph J. Mathews, Relator, v. L & M Radiator Inc., Respondent, Department of Employment and Economic Development, Respondent. |
Appeal from the Department of Employment and Economic Development, File No. 15768 03.
Joseph J. Mathews, Hibbing, MN, (pro se relator)
L & M Radiator Inc., Hibbing, MN, (respondent L & M Radiator Inc.)
Linda A. Holmes, Minnesota Department of Employment and Economic Development, St. Paul, MN, (for respondent Department of Employment and Economic Development)
Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
UNPUBLISHED OPINION
In this certiorari appeal from a denial of unemployment benefits, Joseph Mathews disputes the determination that he engaged in employee misconduct and contends that he was instead discharged for raising issues about the employer's failure to make promised wage increases. Because the record supports the determination that the employer terminated Mathews's employment for violation of its attendance policy and does not support Mathews's alternative argument, we affirm his disqualification from receiving unemployment benefits.
L & M Radiator Inc. discharged Joseph Mathews on July 23, 2003, from his employment as a welder for violation of attendance standards. L & M's employee guidelines permit five absences each year; Mathews's final absence was his ninth that year. Matthews's supervisor orally warned him during an evaluation in January 2003 that, unless he improved his attendance, L & M would terminate his employment.
Mathews missed seven nonconsecutive days of work for illnesses and injuries from March through July 2003. Each time he called before the start of his shift to notify his supervisor that he would be absent from work. He also missed a day in May because of car problems and again called before his shift to report that absence. He did not, however, call L & M to notify his supervisor that he would not be at work on July 22, 2003. The record shows that he did not report to work because of a home-related construction project and that he did not call because he had no access to a phone. In response to the failure to notify L & M of his absence, his supervisor terminated Mathews's employment the following day for violation of L & M's attendance policy.
Mathews filed a claim for unemployment benefits that was denied based on a determination of employment misconduct. He appealed to an unemployment law judge (ULJ), who conducted a telephone hearing in which Mathews did not participate. The ULJ affirmed the denial of benefits. On certiorari appeal from that denial, the commissioner's representative affirmed, and Mathews appeals from this determination.
A discharged employee is not qualified for unemployment benefits if the reasons for discharge constitute employment misconduct. Minn. Stat. § 268.095, subd. 4(1) (2002). We apply the definition of employment misconduct in effect at the time of the termination. Bray v. Dogs & Cats Ltd., 679 N.W.2d 182, 185 (Minn. App. 2004). The law in effect in July 2003 defined employment misconduct as any "intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee . . . or . . . negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment." Minn. Stat. § 268.095, subd. 6(a) (2002); Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002) ( statutory definition).
Absences caused by illness or injury are not misconduct if the employee provides notice to the employer. Minn. Stat. § 268.095, subd. 6(b) (2002). But excessive tardiness or absenteeism that is unrelated to illness or injury demonstrates an employee's disregard of an employer's interests. McLean v. Plastics, Inc., 378 N.W.2d 104, 107 (Minn. App. 1985); Evenson v. Omnetic's, 344 N.W.2d 881, 883 (Minn. App. 1984). This principle is particularly applicable when the employee has been previously warned. McLean, 378 N.W.2d at 107; Everson, 344 N.W.2d at 883. Similarly, an employee's failure to give proper notice of an absence may demonstrate a lack of concern for employment that constitutes disqualifying misconduct. See Edwards v. Yellow Freight Sys., 342 N.W.2d 357, 359 (Minn. App. 1984).
Whether an employee is disqualified from receiving unemployment benefits is a mixed question of law and fact. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002). The determination of whether the employee committed a particular act is a factual question,...
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