Novitsky v. Department of Natural Resources, 81-954.

• Decision Date: 04 June 1982
• Docket Number: No. 81-954.,81-954.
• Citation: 320 NW 2d 85
• Parties: Richard NOVITSKY, Relator, v. DEPARTMENT OF NATURAL RESOURCES, Respondent, Commissioner of Economic Security, Respondent.
• Court: Minnesota Supreme Court

320 N.W.2d 85 (1982)

Richard NOVITSKY, Relator, v. DEPARTMENT OF NATURAL RESOURCES, Respondent Commissioner of Economic Security, Respondent.

No. 81-954.

Supreme Court of Minnesota.

June 4, 1982.

Richard Novitsky, pro se.

Warren Spannaus, Atty. Gen., St. Paul, for Dept. of Natural Resources.

Warren Spannaus, Atty. Gen., and Peter C. Andrews, Asst. Atty. Gen., St. Paul, for respondent.

Considered and decided by the court en banc without oral argument.

OTIS, Justice.

Richard Novitsky, an employee of the Department of Natural Resources, petitions this court to review a decision of the Commissioner of the Department of Economic Security concerning the compensation benefits the employee was entitled to receive.

Novitsky had been employed as an equipment operator until his layoff on October 20, 1980. He filed a claim for unemployment compensation benefits on October 27, 1980. Pursuant to Minn.Stat. § 268.04, subd. 2 (1980), the claim was assigned an effective date of October 26, 1980, and by operation of section 268.04, subd. 4 (1980), Novitsky's base period of employment was determined by the Department of Economic Security to have begun October 28, 1979 and to have ended October 25, 1980.

In determining the "Wage credits" under Minn.Stat. § 268.04, subd. 26 (1980), for the purpose of computing the weekly and the maximum amount of unemployment compensation benefits to which relator would be entitled, the Department failed to include $669.60 earned for the pay period ending October 21, 1980, and $301.32 earned for the pay period ending November 4, 1980. The basis for the decision to exclude these amounts was that actual payment was not received until October 31, 1980 and November 14, 1980, respectively, which was after the base period of employment.

Relator appealed the decision to exclude these amounts on November 14, 1980. The Appeal Tribunal concluded that the exclusion of amounts earned by the relator before the effective date of his claim for unemployment compensation but paid thereafter was proper and in accordance with the law. It reasoned as follows:

While it is true that the claimant earned these wage credits during his base period, the fact remains that said wages were paid outside of his base period and cannot be included as wage credits pursuant to Minnesota Statutes, Section 268.04, Subdivision 26, because they were not "due and payable" within the base period. The words "due and payable" mean that the time for payment has arrived. * * * For state employees the "time for payment" arrives 10 days after the close of the pay period.

The decision of the Appeal Tribunal was affirmed by the Commissioner, Department of Economic Security.

Because we believe that the Department was mistaken in its interpretation of the phrase "wages...