Opinion
No. C3-97-1426.
Filed February 17, 1998.
Appeal from the Department of Economic Security, File No. 2903UC97.
Bentley C. Heyne, (pro se relator)
MGS Professional Building Maintenance Service, Inc., (respondent employer)
Kent E. Todd, Minnesota Department of Economic Security, (respondent Commissioner of Economic Security)
Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Bentley C. Heyne, a laborer for MGS Professional Building Maintenance Service, Inc., was terminated from employment due to tardiness, absenteeism, reporting to work under the influence of alcohol, and drinking on the job. By writ of certiorari, Heyne appeals the commissioner's determination that he was not entitled to receive reemployment insurance benefits because he was separated from employment due to misconduct. We affirm.
DECISION
The reemployment insurance fund is available only to persons "unemployed through no fault of their own." Minn. Stat. § 268.03 (1996); White v. Metropolitan Med. Ctr. , 332 N.W.2d 25, 26 (Minn. 1983). Therefore, an employee discharged for misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(b) (1996). The employer bears the burden of proving the employee's misconduct. Ress v. Abbott Northwestern Hosp., Inc. , 448 N.W.2d 519, 523 (Minn. 1989). Our review of the commissioner's factual findings is limited to whether the evidence, viewed in the light most favorable to the decision below, supports the decision. Id. However, we review de novo whether the facts, as found by the commissioner, constitute misconduct. Id.
Heyne argues his employer did not meet its burden of proof on the issue of "misconduct." See Marz v. Department of Employment Servs. , 256 N.W.2d 287, 289 (Minn. 1977) (concluding employer has burden of proving disqualification of otherwise eligible employees). However, the evidence shows: (1) Heyne admitted he was late to work on several occasions, and had failed to call in as required by company policy; (2) according to testimony from the company president, Heyne occasionally reported to work under the influence of alcohol; (3) several other employees reported Heyne drank alcohol on the job; (4) Heyne was warned about the consequences of his absenteeism, excessive tardiness, and drinking problem in December 1996; and (5) Heyne failed to report to work on February 4, 1997. Although there was contrary evidence, we defer to the commissioner's determination of credibility issues. See Tuff v. Knitcraft Corp. , 526 N.W.2d 50, 51 (Minn. 1995) (concluding court gives deference to findings of commissioner's representative even though findings may involve witness credibility). Under these circumstances, the employer met its burden of proving Heyne's conduct constituted "misconduct" within the meaning of Minn. Stat. § 268.09, subd. 1(b). See Ress , 448 N.W.2d at 524 (concluding when conducting misconduct analysis, courts may examine whether employee deliberately violated standards of behavior that employer has right to expect of its employee, whether an employee's conduct adversely affected business or other employee's morale, and whether an employee ignored past warnings). The commissioner's decision is supported by the record and is not arbitrary or unreasonable.