Opinion
No. CX-98-848.
Filed December 8, 1998.
Appeal from the Department of Economic Security, File No. 686UC98.
Reino J. Paaso, (for relator).
American Building Maintenance Co., (respondent).
Kent E. Todd, (for respondent Commissioner).
Considered and decided by Schumacher, Presiding Judge, Peterson, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION
Relator Marvin R. Love appeals the commissioner's decision denying him re-employment insurance benefits on the grounds of insufficient evidence and errors of law. We affirm.
FACTS
Love began working for respondent American Building Maintenance Co. in May 1997. In July, he asked for a leave of absence to visit his dying father in Mississippi. Love's supervisor orally agreed to give him the leave, stating that it should not be a problem because work was slow. Love stated that he would be gone from three to five weeks. No definitive return date was agreed on and nothing was put in writing. The supervisor told Love to call when he returned. Love's last day of work was August 13, 1997. He made no contact with American Building after he left. Love returned to Minnesota in December and called American Building on December 26, leaving a voice mail message for his supervisor. He reached his supervisor during the first week of January 1998, at which time he was told that he was no longer employed.
The commissioner's representative found Love voluntarily quit without good cause attributable to his employer and denied his claim for benefits. Love appeals.
DECISION
The commissioner's representative's findings of fact are to be viewed in the light most favorable to the decision and the findings may be reviewed only to determine whether the evidence reasonably supports the commissioner's representative's decision. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). A determination by the commissioner's representative that an employee committed misconduct is a mixed question of law and fact. A reviewing court will affirm if the findings of fact are supported by the evidence and if the conclusions are not contrary to the law. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984).
This court's review of the commissioner's representative's factual determination focuses on whether the evidence reasonably supports the findings. The initial burden of proving that an employee voluntarily quit is on the employer. Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977). The commissioner's representative found evidence that Love's abandonment was the equivalent of a voluntary quit. She also found that such an action could equally be construed as misconduct.
The commissioner's representative found that Love told American Building that his leave would only last three to five weeks, yet he failed to return or contact American Building for over four months. The facts support the commissioner's representative's decision that Love quit, as well as that it was misconduct. In Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51-52 (Minn. 1995), an employee's failure to return from medical leave resulted in a discharge for misconduct. The facts of this case call for a similar result.
Love argues that the commissioner's representative should not have imposed a duty on him to call American Building sooner when American Building did not impose such a duty and the law imposes no duty. This issue is a combination of law and fact. Misconduct is defined as 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.
Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973). General absenteeism has been regarded as misconduct in the past. Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn.App. 1984). Failure to return from leave also has been regarded as misconduct. Tuff, 526 N.W.2d at 51-52.
The commissioner's representative concluded that Love should have called after his leave ended, which she found to be about five weeks, so that his failure to return or call by that time constituted misconduct under the statute. Minn. Stat. § 268.09, subd. 12 (Supp. 1997).
The commissioner's representative correctly applied the law. There is certain conduct an employer can reasonably expect from an employee. See Minn. Stat. § 268.09, subd. 12(2) (stating misconduct can be disregard of "the standards of behavior that an employer has the right to expect of the employee"). We conclude that Love had a duty to his employer to call or in some way stay in contact, whether it was expressly requested or not.
The good faith argument raised by Love has no legal basis. Good faith by the employer is not an element of this court's review.