This opinion will be unpublished and

may not be cited except as provided by

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






Thomas L. Maternowsky,





Minnesota Best Maid Cookie Co.,



Commissioner of Economic Security,



Filed April 25, 2000

Klaphake, Judge


Department of Economic Security

File No. 3294 UC 99


Thomas L. Maternowsky, 610 Chieftain Street, #8, Osceola, WI  54020 (relator pro se)


Minnesota Best Maid Cookie Co., 1147 Benson St., River Falls, WI  54022 (respondent employer)


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


            Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.*

U N P U B L I S H E D   O P I N I O N


            Relator Thomas Maternowsky appeals the Commissioner of Economic Security’s determination that he is disqualified from receiving reemployment benefits because he was discharged from his employment for misconduct.  The commissioner found that relator committed misconduct by refusing to work on a cookie-cutter machine as directed by his employer, Minnesota Best Maid Cookie Company (Best Maid).  Because relator offered uncontradicted evidence that he was untrained to operate the machine, we conclude that Best Maid failed to meet its burden of proving that relator’s conduct constituted misconduct.  We therefore reverse.  


            An employer has the burden to prove that an employee is disqualified from receiving reemployment insurance benefits.  Minn. Stat. § 268.095, subd. 6 (1998).  The employer must establish misconduct by a preponderance of the evidence.  Minn. Stat. § 268.03, subd. 2 (1998).  Under the reemployment insurance statute, employee misconduct is defined as, among other things, intentional conduct that disregards

the employee’s duties and obligations to the employer.  * * * Inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance as a result of inability or incapacity are not misconduct.


Minn. Stat. § 268.095, subd. 6 (1998).

            Generally, an employee who disobeys a direct order from his employer has committed disqualifying misconduct.  See Deike v. Gopher Smelting, 413 N.W.2d 590,     (Minn. App. 1987) (employee refused to work as directed and walked off job); Bibeau v. Resistance Tech., Inc., 411 N.W.2d 29, 31-32 (Minn. App. 1987) (employee refused to perform quality assurance checks of employer’s product).  “When an employer’s request is unreasonable under the circumstances, however, an employee’s refusal to comply does not constitute misconduct.”  Nelson v. Star Tribune, 445 N.W.2d 864, 868 (Minn. App. 1989) (citation omitted).

            We conclude that Best Maid did not meet its burden of proof that relator committed misconduct in refusing to operate the cookie-cutter machine.  Relator testified that on the day of his termination, the plant manager, Rick Brattrude, gave him the ultimatum to operate the machine or be fired.  Relator submitted evidence that (1) he was not trained to operate the machine, although he and another trained employee had operated it together for a half day for a much simpler operation; (2) training to operate the machine took one week; (3) the machine had not been working well that day; and (4) Brattrude was very frustrated because even he had been unable to make it operate correctly.  Relator also claimed that the machine was “extremely hazardous,” that he had “seen a 1,500 lb. basket fall to the floor when an experienced person was running it,” and that “if someone would have been hurt that day OSHA would have been called.”  Nowhere in the record does Best Maid counter these claims.  Thus, Best Maid, as a matter of law, failed to prove that relator was disqualified from receiving reemployment benefits on the basis that he committed misconduct.  See Ress v. Abbott Northwestern Hosp. Inc., 448 N.W.2d 519, 523 (Minn. 1989) (appellate court’s review of commissioner’s representative’s findings limited to whether evidence in record reasonably tends to support those findings, but may include exercise of independent judgment with respect to questions of law).  This conclusion is consistent with the remedial purpose of the statute.  See Cook v. Playworks, 541 N.W.2d 366, 368 (Minn. App. 1996) (“Reemployment insurance statutes are remedial and must be interpreted liberally in favor of awarding benefits.”).


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.