McLean v. Plastics, Inc.

• Decision Date: 03 December 1985
• Docket Number: No. C1-85-1242,C1-85-1242
• Citation: 378 N.W.2d 104
• Parties: Gary McLEAN, Relator, v. PLASTICS, INC., Respondent, Commissioner of Economic Security, Respondent.
• Court: Minnesota Court of Appeals

Page 104

378 N.W.2d 104

Gary McLEAN, Relator, v. PLASTICS, INC., Respondent Commissioner of Economic Security, Respondent.

No. C1-85-1242.

Court of Appeals of Minnesota.

Dec. 3, 1985.

Syllabus by the Court

The Commissioner's representative did not err in affirming the referee's determination of employee misconduct. Remand to the referee for the receipt of additional evidence was not required.

Mark S. Genereux, St. Paul, for relator.

Thomas F. Miller, St. Paul, Hubert H. Humphrey, III, Atty. Gen., James Patrick Barone, Sp. Asst. Atty. Gen., St. Paul, for respondents.

Heard, considered and decided by RANDALL, P.J., and PARKER and SEDGWICK, JJ.

OPINION

RANDALL, Judge.

Gary McLean appeals from a determination by the Commissioner of Economic Security that he was not entitled to a remand for purposes of reconsidering whether he was discharged by his employer for misconduct. We affirm.

FACTS

Gary McLean was employed by Plastics, Inc. as a maintenance mechanic from November 1966 until March 11, 1985, when he was discharged for excessive tardiness. He filed a claim for unemployment compensation benefits, alleging that much of his tardiness had been caused by a work-related injury, and that he had only been two minutes late on his last day of work. A claims deputy denied him benefits, and he appealed to a referee.

McLean failed to appear on the date scheduled for his hearing before the referee. A representative from Plastics, Inc. appeared at the hearing and explained why McLean had been discharged. McLean's termination letter, indicating that he had been late upon thirteen occasions within the previous twelve months, and that he had received two warnings from his employer concerning his tardiness, was admitted into evidence. Based upon the evidence submitted by the employer, the referee affirmed the claims deputy's decision to deny McLean benefits.

McLean appealed the referee's decision, stating in his request for review:

I was properly notified of the appeal hearing date of 4-25-85. Somehow I forgot to go to the hearing on 4-25-85. I was preoccupied with thinking about finding a job and I spent the day of 4-25-85 trying to find a job. I thought the day of 4-25-85 was a Friday instead of a Thursday. I did not realize I had missed the hearing until 6:00 p.m. on Friday, 4-26-85 when I checked my copy of the notice of appeal. I hereby request that I be granted a second level of appeal and I wish also to be considered for holding the first level appeal so I can testify to why I was discharged for other than proven misconduct by Plastics on 3-6-85.

(Emphasis supplied.)

A Commissioner's representative refused to remand the matter to allow McLean to present testimony, stating:

The claimant failed to appear at the hearing before the Referee in this matter essentially because he forgot about it. Unfortunately, this is not considered a sufficient legal reason to justify reopening the hearing process.

The Commissioner's representative affirmed the decision of the referee. As there was no record made of the hearing, the Commissioner's decision was based solely upon the documentary evidence submitted to the referee.

McLean requests further review by this court, claiming that the Commissioner's representative should have reopened this matter for further testimony and that the evidence submitted by Plastics, Inc. did not prove as a matter of law that he was discharged for misconduct.

ISSUE

Did the Commissioner's representative erroneously determine that McLean was fired for misconduct, rather than remanding to allow McLean to present evidence?

ANALYSIS

An employee who is discharged for misconduct is disqualified from receiving unemployment compensation benefits. Minn.Stat. Sec. 268.09, subd. 1(2) (1984). The Minnesota Supreme Court defined the term "misconduct" in Tilseth v. Midwest Lumber Co., 295 Minn. 372, 204 N.W.2d 644 (1973):

[T]he intended meaning of the term '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.'

Id. at 374-5, 204 N.W.2d at 646 (citation omitted).

An employer has the burden of proving that an employee was discharged for misconduct. Plowman v. Copeland, Buhl & Co., Ltd., 261 N.W.2d 581, 585 (Minn.1977). Once the Commissioner has determined that an employer has met this burden, appellate review is limited to deciding whether there is evidence in the record reasonably tending to support the Commissioner's determination. White v. Metropolitan Medical Center, 332 N.W.2d 25 (Minn.1983).

As we noted in Smith v. American Indian Chemical Dependency Diversion Project, 343 N.W.2d 43 (Minn.Ct.App.1984), "[t]he Minnesota Supreme Court has recognized absenteeism as misconduct." Id. at 45, citing Moeller v. Minnesota Department of Transportation, 281 N.W.2d 879, 882 (Minn.1979).

Despite the fact that McLean was often late for work, he claims that his tardiness was due to a work-related injury and was therefore not wilful or culpable. ¹ McLean cites St. Williams Nursing Home v. Koep, 369 N.W.2d 33 (Minn.Ct.App.1985), where we determined that although an employee had been absent ten...