Opinion
No. A03-1269.
Filed April 27, 2004.
Appeal from the Department of Employment and Economic Development File No. 6441 03.
Brett A. Mellem, Ham Lake, Mn, (relator Pro se).
Kaufman Sign Company (Corp), Minneapolis, Mn, (respondent).
Lee B. Nelson, Philip B. Byrne, Minnesota Department of Economic Security, St. Paul, Mn, (for respondent Commissioner).
Considered and decided by Willis, Presiding Judge; Schumacher, Judge; and Wright, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Relator challenges the decision of the commissioner's representative that relator is disqualified from receiving unemployment benefits because he was discharged for employment misconduct. We affirm.
FACTS
Respondent Kaufman Sign Company employed relator Brent Mellem as a glass bender from September 2001 through March 2003. During his tenure, Mellem failed to meet project deadlines in October and November 2002. On March 12, 2003, Mellem received an assignment to complete a sign by March 17. Dan Kaufman, the company president, advised Mellem that he planned to deliver the sign to a customer in Chicago on March 17. On March 14, when Kaufman asked Mellem whether the sign would be completed on time, Mellem assured Kaufman that it would. Mellem started the project on March 16. He testified that he was unable to finish the sign on March 16 because he ran out of glass and Kaufman did not get more glass until March 17. Because Mellem did not finish the sign on March 17, Kaufman postponed his departure until noon on March 18. On March 18, although Mellem worked on the sign in the morning, he left mid morning without telling Kaufman where he was going or whether he would return. Mellem returned to work in the afternoon and finished the sign after Kaufman had gone to Chicago. Mellem shipped the sign to Kaufman in Chicago. When Kaufman returned from the business trip, he fired Mellem for failing to meet the project deadline.
Mellem applied for unemployment benefits. The Department of Employment and Economic Development determined that Mellem was eligible for benefits. Kaufman appealed the decision to an unemployment law judge who affirmed the initial determination. Kaufman then appealed to the commissioner's representative who reversed, concluding that Mellem was disqualified from receiving unemployment benefits because he was discharged for employment misconduct. Mellem now appeals.
DECISION
On appeal, we review the findings of the commissioner's representative rather than those of the unemployment law judge. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995). In doing so, we view the findings in the light most favorable to the decision to determine whether the evidence reasonably supports them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).
An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits. Minn. Stat. § 268.095, subd. 4(1) (2002). Employment misconduct is defined as "(1) any intentional conduct . . . that disregards the standards of behavior that an employer has the right to expect of the employee or [that] disregards the employee's duties and obligations to the employer; or (2) negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment." Minn. Stat. § 268.095, subd. 6(a) (2002). Whether an employee committed employment misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). Whether the employee committed a particular act is a question of fact. Scheunemann v. Radisson South Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997). Whether the act constitutes employment misconduct is a question of law, which we review de novo. Ress, 448 N.W.2d at 523.
The definition of employment misconduct was amended by the legislature, effective August 1, 2003. 2003 Minn. Laws 1st Spec. Sess. ch. 3, art. 2, §§ 13, 20(g); see Minn. Stat. § 645.02 (2002). The amended definition provides that employment misconduct is any intentional, negligent, or indifferent conduct that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee or that demonstrates a substantial lack of concern for the employment. Minn. Stat. § 268.095, subd. 6(a) (Supp. 2003). The events leading to Mellem's discharge occurred prior to the effective date for the new definition of misconduct. We, therefore, review the record using the definition of employment misconduct in effect at the time of the conduct. See Chapman v. Davis, 233 Minn. 62, 65-66, 45 N.W.2d 822, 824 (1951) (holding that no law shall be construed to apply retroactively unless "clearly and manifestly" intended); In re Wage Hour Violations of Holly Inn, Inc., 386 N.W.2d 305, 312 (Minn. App. 1986) (concluding that the new provisions of an amended statute must be construed as effective only from the date when the amendment became effective and not retroactively unless specifically prescribed).
Generally, if an employer's request is reasonable and does not impose an unreasonable burden, refusal to comply with the request constitutes employment misconduct. Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). A pattern of failing to follow procedures and ignoring directions demonstrates a substantial lack of concern for the employer's interests. Gilkeson v. Indus. Parts Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986).
Mellem argues that the record does not support the conclusion that his actions constitute employment misconduct. We disagree. The record establishes that Mellem's conduct exhibited a substantial lack of concern for the employment. It is undisputed that Kaufman told Mellem that the sign needed to be completed before Kaufman departed for Chicago on March 17. Mellem assured Kaufman that the sign would be completed on time. But Mellem did not begin working on it until the day before the sign needed to be completed. Mellem neither finished the sign on March 17 nor advised Kaufman that the sign would not be completed on time. Kaufman postponed his departure until noon on March 18, expecting Mellem to have the sign completed before Kaufman left. Mellem did not do so. Rather, Mellem worked for a few hours in the morning and then left without finishing the sign before Kaufman's departure. The record also establishes that Mellem had failed to complete projects on time in the past.
When viewed in the light most favorable to the decision, Mellem's actions constitute "negligent or indifferent conduct . . . that demonstrates a substantial lack of concern for the employment." See Minn. Stat. § 268.095, subd. 6(a)(2). Kaufman's request was reasonable. Without a compelling excuse, Mellem's failure to meet the project deadline, when considered in conjunction with his history of similar lapses, leads us to conclude that the decision of the commissioner's representative was not erroneous.