This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Tong Lee,





Japs-Olson Co.,



Commissioner of Economic Security,



Filed April 4, 2000


Davies, Judge


Department of Economic Security

File No. 2561UC99



Tong Lee, 3331 Colfax Ave. N., Minneapolis, MN 55412 (pro se respondent)


John P. Haberman, Law Offices of Martin L. Garden, 2520 Centre Village, 431 South Seventh St., Minneapolis, MN 55415 (for relator)


Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert St., St. Paul, MN 55101 (for respondent Commissioner of Economic Security)


            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N


            Employer Japs-Olson appeals from a determination by the commissioner’s representative that an employee did not engage in misconduct when, instead of notifying his supervisor directly, he asked a co-worker to tell a supervisor that he was leaving his job early because of pain.  We affirm.


            The issue in this case is whether respondent Tong Lee committed “misconduct” within the meaning of Minn. Stat § 268.095, subd. 6 (1998).   On November 6, 1998, Lee had left work early because of leg pain without telling a supervisor.  Relator Japs-Olson discharged him.

On agreed facts, whether an employee’s act constitutes misconduct is a question of law, which this court reviews de novo.  Ress v. Abbot N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  A discharged employee is disqualified from receiving reemployment-compensation benefits if the termination resulted from misconduct that interfered with and adversely affected employment.  Minn. Stat § 268.095, subd. 4 (1998).  In 1998, the statutes defined “misconduct” as any intentional conduct that shows a disregard of:  (1) the employer’s interest; (2) the standards of behavior the employer has a right to expect; or (3) the employee’s duties and obligations to the employer.  Id. at subd. 6.  Misconduct also includes negligent conduct that demonstrates a substantial lack of concern for the employment.  Id.  The employer has the burden of proving disqualifying misconduct.  Marz v. Department of Employment Servs., 256 N.W.2d 287, 289 (Minn. 1977).

            An unwritten policy of relator required an employee to tell a supervisor when leaving work in mid-shift.  Early in his shift on the day Lee left work, he mentioned to a supervisor that he was experiencing pain in a leg he had injured at work nine months previously.  About two hours before his shift ended, the pain became so great that Lee could not continue work.  Because he could not immediately locate a supervisor, Lee asked a co-worker to tell a supervisor that he was leaving because of the pain.  The co-worker failed to relay the message and a bottleneck resulting from his departure partially shut down the plant for an hour or two.

            In the past, when Lee was going to miss a day of work, he had asked a co-worker to tell a supervisor; he had not been told that this was inappropriate behavior.  Lee testified that he thought it was also acceptable to leave work and have a co-worker tell a supervisor, but the employer claims its early-departure rule differed from its missed-day policy.

            A single absence from work may constitute misconduct when an employee has not received permission to be absent.  See, e.g., Psihos v. R & M Mfg., 352 N.W.2d 849, 850 (Minn. App. 1984) (upholding finding of misconduct because employee left work without permission from anyone in authority).  But we have also found that an employee who leaves work without notifying a supervisor is not guilty of misconduct when the evidence failed to show that the employee knew or should have known that his actions would lead to dismissal.  See Hoemberg v. Watco Publishers, Inc., 343 N.W.2d 676, 678-79 (Minn. App. 1984) (finding employee not guilty of misconduct when employer failed to follow disciplinary warning policy and evidence failed to show that employee should have known action would lead to dismissal), review denied (Minn. May 15, 1984).  And misconduct does not arise from good-faith errors in judgment or discretion.  Peksa v. Fairview-Southdale Hosp., 512 N.W.2d 913, 916 (Minn. App. 1994).

            The evidence does not show that Lee knew or should have known that his actions would lead to dismissal, but rather supports the commissioner’s representative’s finding that Lee, acting in good faith, made an error in judgment.  Accordingly, the commissioner’s representative properly determined that Lee was not disqualified from receiving reemployment-compensation benefits.  See Ress, 448 N.W.2d at 523 (construing disqualification provisions narrowly because of reemployment-compensation act’s remedial nature).