Olson v. Job Service North Dakota, 10966

• Decision Date: 18 December 1985
• Docket Number: No. 10966,10966
• Citation: 379 N.W.2d 285
• Parties: Sandra OLSON, Appellant, v. JOB SERVICE NORTH DAKOTA and E.W. Wylie Corp., Appellees. Civ.
• Court: North Dakota Supreme Court

Page 285

379 N.W.2d 285

Sandra OLSON, Appellant, v. JOB SERVICE NORTH DAKOTA and E.W. Wylie Corp., Appellees.

Civ. No. 10966.

Supreme Court of North Dakota.

Dec. 18, 1985.

Alan Baker, argued, of Kirschner & Baker Legal Clinic, Fargo, for appellant.

Sidney Hertz Fiergola, argued and Michael J. Wilma, Asst. Attys. Gen., Bismarck, for appellees.

GIERKE, Justice.

This is an appeal by Sandra Olson from an order of the District Court of Cass County which affirmed a decision by Job Service North Dakota disqualifying Sandra from receiving unemployment benefits. We reverse and remand.

Sandra Olson was hired as a salaried employee by the E.W. Wylie Corporation on May 7, 1979. Wylie alleges that, at the time of hiring, Sandra agreed to refrain from the consumption of alcohol, both on and off the job. Sandra has said she does not recall entering into such an agreement.

During the evening of May 15, 1984, Sandra drank approximately two beers. Some two hours later she decided to drive to Jamestown. Before reaching Jamestown, she apparently fell asleep and her car went into the ditch. The police officer who assisted at the scene of the accident issued a citation for "care required in operating a vehicle".

After being treated and released at the Jamestown Hospital, she went to visit a friend, who was the director of nursing at the Jamestown State Hospital. Sandra was treated at the Jamestown State Hospital for emotional problems, unrelated to the consumption of alcohol, on May 16 and 17, 1984.

The hospital staff informed Wylie that Sandra would not be at work on May 16, 1984. Sandra later notified Wylie she would not be at work on May 17, 1984, because she was still hospitalized.

She was released from the hospital on May 17, 1984. She then returned to Fargo and met with representatives of Wylie. Later, on May 17, 1984, she was fired.

Sandra filed a claim for unemployment benefits with Job Service North Dakota but her claim was denied. On June 6, 1984, Job Service notified Sandra she was disqualified from receiving benefits because she had been discharged for misconduct. Upon appeal of this determination an administrative hearing was held on July 20, 1984. On July 27, 1984, the appeals referee issued a decision granting Sandra job insurance benefits effective May 20, 1984. Wylie then requested and was granted bureau review. The Job Service bureau review reversed the referee's decision on appeal, finding misconduct to be the ground for denial.

Sandra's next level of appeal was the district court. The district court issued findings of fact, conclusions of law, and order for judgment on March 11, 1985, in which it affirmed the decision of Job Service and concluded Sandra Olson should not receive unemployment benefits. Judgment was entered on April 11, 1985, and a notice of entry of judgment, together with an affidavit of mailing, was filed in the District Court of Cass County on April 16, 1985. Sandra Olson filed a notice of appeal on April 19, 1985, which provided the appeal was from "the Order of the Cass County District Court ... on February 19, 1985".

The right of appeal in this state is statutory and is a jurisdictional matter which we may consider sua sponte. Union State Bank v. Miller, 358 N.W.2d 222 (N.D.1984).

The statutory authorization for an appeal to this court when the matter involves an administrative decision is Sec. 28-32-21 of the North Dakota Century Code. In this instance the notice of appeal provides that it is from an "order" and not from a "judgment". In the past we have held, when reviewing an appeal brought forth from an order, that we have no statutory authorization. Davis v. State of North Dakota, Job Service, 365 N.W.2d 497 (N.D.1985); Union State Bank v. Miller, 358 N.W.2d 222 (N.D.1984); Fey v. Fey, 337 N.W.2d 159 (N.D.1983); Trehus v. Job Service of North Dakota, 336 N.W.2d 362 (N.D.1983). At this time and in the future, we will consider an appeal to be properly before this court when the appeal is from an "order" and the record includes a "judgment" which is consistent with the order. We have determined that in the interest of justice this is a prudent change which will preserve those appeals which, but for an error by the appellant, would have been reviewed on their merits. Therefore, the instant appeal is now properly before this court.

The standard of review on appeal from an administrative agency decision is governed by Sec. 28-32-19, N.D.C.C. This court on review looks to the decision of the administrative agency rather than the decision of the district court. Schadler v. Job Service of North Dakota, 361 N.W.2d 254, 256 (N.D.1985). We do not substitute our judgment for that of the agency. Asbridge v. North Dakota State Highway Com'r, 291 N.W.2d 739, 743 (N.D.1980).

The primary issue on appeal is whether or not Job Service was justified in denying benefits to Sandra because of her conduct.

A worker is disqualified from receiving benefits only after he has been "discharged for misconduct in connection with his last employment". Sec. 52-06-02(2), N.D.C.C. Misconduct which may justify discharge may not justify a denial of benefits under our unemployment compensation laws. The term "misconduct" is not defined in North Dakota unemployment compensation law. In Perske we have adopted the widely accepted definition of "misconduct" as originally enunciated in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636, 640 (1941). Perske v. Job Service North Dakota, 336 N.W.2d 146 (N.D.1983).

In Perske, we quote Boynton for the following definition of "misconduct":

"... 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' within the meaning of the statute." Boynton, supra 296 N.W. at 640." Perske, supra, 148-49.

The question of whether or not Sandra's behavior is "misconduct" is a question of law reviewable on appeal. The Boynton definition as reproduced above is properly directed at conduct by the employee which results in harming the employer's interests. Boynton, supra. Job Service found that Sandra...