This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
David G. Ward,
Commissioner of Economic Security,
Filed November 28, 2000
Department of Economic Security
File No. 438699
Peter B. Knapp, William Mitchell Law Clinic, LeAnne D. Bartishofski, Certified Student Attorney, William Mitchell Law Clinic, 875 Summit Avenue, St. Paul, MN 55105 (for relator)
IQI, Inc., c/o R.E. Harrington, Inc., P.O. Box 1160, Columbus, OH 43216-1160 (respondent)
Kent E. Todd, Minnesota Department of Economic Security, 390 North Robert Street, St. Paul, MN 55101 (for respondent Commissioner of Economic Security)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
Relator challenges the determination by the commissioner’s representative that he is disqualified from receiving reemployment-compensation benefits. Because the record reasonably tends to support the conclusion by the commissioner’s representative that Ward quit his employment, that even if he did not quit he was discharged for misconduct, and that the “better-work” exception does not apply, we affirm.
Relator David G. Ward began working with IQI, Inc., as a full-time telemarketer in August 1998. In late September 1999, Ward filed a request for a leave of absence from October 7 through mid-November. It was IQI’s practice to inform its employees on the same day a request was filed if the leave was denied, otherwise they were to assume the request had been approved. Not having been informed of a denial, Ward began his leave on October 5, planning to take accrued vacation time on that and the following day. On October 7, Ward began training and working on a trial basis at The Connection, a telemarketing firm in Sisseton, South Dakota.
On Friday, October 8, Ward stopped by IQI to pick up his paycheck. He was informed that his leave request had been denied and told to contact Angelo Griego, IQI’s human-resources director. The following Monday, Ward called Griego, who apologized for not informing Ward sooner about the denial and told him that because of the mistake he would have until October 18 to return to work. Ward responded that, believing his leave had been approved, he had made other commitments. Griego informed Ward that if he did not return to work on October 18 he would be fired. Ward contends that IQI denied his leave request because he accepted employment with The Connection. IQI claims that it denied Ward’s request because the reasons for the requested leave were not properly documented and he had already taken a one-month leave of absence earlier in the year. Ward did not report back to work on October 18. Two days later he was terminated.
Ward applied for reemployment-compensation benefits. The Department of Economic Security determined he was disqualified from receiving benefits because he had quit his employment. Ward appealed that determination. Following a telephone hearing, a reemployment-compensation judge determined that Ward had quit his employment, that he had not quit because of a good reason caused by his employer, and that no other exception to disqualification from benefits applied. Ward appealed the decision to the commissioner’s representative, who also determined that Ward had quit his employment without good reason; that, even if his separation were to be classified as a discharge, he would still be disqualified from benefits because his refusal to return to work was misconduct; and that the better-work exception does not apply. Ward then filed this certiorari appeal seeking review of the commissioner’s representative’s decision.
An appellate court examines the decision of the commissioner’s representative, rather than that of the reemployment-compensation judge. Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997). Decisions of a commissioner’s representative are accorded particular deference. Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).
The commissioner’s representative determined that Ward quit his employment with IQI. With few exceptions, an applicant who quits his employment “shall be disqualified from all benefits.” Minn. Stat. § 268.095, subd. 1 (Supp. 1999). “Whether an employee has been discharged or voluntarily quit is a question of fact.” Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985) (citations omitted). Findings of fact must be reviewed in the light most favorable to the decision and will not be disturbed if there is evidence reasonably tending to support them. Id. A quit from employment occurs “when the decision to end the employment was, at the time the employment ended, the employee’s.” Minn. Stat. § 268.095, subd. 2 (Supp. 1999). Ward argues that because IQI terminated him, he was discharged and did not quit. The commissioner’s representative determined that the decision to quit was Ward’s; he knew that continuing work was available with IQI if he returned on October 18, yet he chose not to do so. There is record evidence reasonably tending to support the commissioner’s representative’s finding that Ward quit his employment.
Ward argues the commissioner’s representative erred in concluding that, even if he did not quit, he was disqualified from benefits because of employment misconduct. An applicant who is discharged from employment by an employer “shall not be disqualified from any benefits” except when “the applicant was discharged because of employment misconduct.” Minn. Stat. § 268.095, subd. 4(1) (Supp. 1999). The determination that an employee is disqualified for reasons of misconduct is a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc.,346 N.W.2d 159, 161 (Minn. 1984). A reviewing court will not disturb the commissioner’s representative’s findings of fact if evidence in the record reasonably tends to support them, see Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996), and will affirm if “the conclusion on those facts is not contrary to the statutory mandate.” Colburn, 346 N.W.2d at 161.
The commissioner’s representative determined that
[e]ven if, for the sake of argument, we were to classify Ward’s separation as a discharge, the outcome would remain the same because his refusal to return to work on October 18, 1999 constituted an act of employment misconduct.
Under Minnesota’s reemployment-compensation scheme, misconduct includes
(1) any intentional conduct, on the job or off the job, that disregards the standards of behavior that an employer has the right to expect of the employee or disregards the employee's duties and obligations to the employer; or
(2) negligent or indifferent conduct, on the job or off the job, that demonstrates a substantial lack of concern for the employment.
Minn. Stat. § 268.095, subd. 6 (Supp. 1999). Absence from work under circumstances within the control of the employee is misconduct sufficient to deny benefits. Winkler v. Park Refuse Serv., Inc., 361 N.W.2d 120, 124 (Minn. App. 1985). The critical factor is whether the employee’s behavior caused the failure to report to work. Id. Here, Ward chose not to return to work. The record reasonably tends to support the commissioner’s representative’s determination that, even if Ward did not quit, his decision not to return to work was disqualifying misconduct.
Ward argues that, even if he did voluntarily quit, he is still entitled to benefits under the better-work exception. A reemployment-compensation applicant is not disqualified from benefits when he or she voluntarily quits employment
to accept other covered employment that provided substantially better terms and conditions of employment, but the applicant did not work long enough at the other employment to have sufficient subsequent earnings to satisfy the disqualification that would otherwise be imposed.
Minn. Stat. § 268.095, subd. 1(2). Ward claims that the commissioner’s representative found “insufficient evidence on the record” to conclude that he fit within the better-work exception. He argues it is unfair for the reemployment-compensation judge to fail to develop a record necessary for the commissioner’s representative to make a determination and then for the commissioner’s representative to deny relief based on this insufficient record. Ward misrepresents the commissioner’s representative’s findings: She did not find “insufficient” evidence on the record to make a determination that Ward’s new employment was better work; rather, she concluded that the “evidence does not support that finding.”
Regardless of how the commissioner’s representative’s conclusion is construed, the department’s rules provide that reemployment-compensation judges “should assist unrepresented parties in the presentation of evidence” and “shall ensure that relevant facts are clearly and fully developed.” Minn. R. 3310.2921 (1999). This court has expressed concern about an incomplete record arising when a reemployment-compensation judge either hinders or fails to help an unrepresented relator develop relevant issues. See Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997) (concluding that reemployment-compensation judge erred in refusing testimony because employee’s evidence that she was discharged for reporting sexual harassment was relevant to rebut employer’s evidence that the discharge was for misconduct); Poppler v. Dolphin Clerical, No. C0-98-1488, 1999 WL 55611, at *1 n.1 (Minn. App. Feb. 9, 1999) (stating that “the fault for an incomplete record cannot be placed with relator alone”). At Ward’s hearing, the reemployment-compensation judge asked Ward, “[W]hat kind of an outfit is it over there in South Dakota?” Ward described the work done by The Connection and stated that he had sought employment there because he “wanted to have a management position.” The reemployment-compensation judge did not ask any follow-up questions. Although the reemployment-compensation judge should have pursued this topic further, failure to do so was not error. See Poppler, 1999 WL 55611, at *1 n.1 (finding no error despite reemployment-compensation judge’s failure to develop record adequately). The commissioner’s representative did not err in determining that the better-work exception does not apply.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Effective April 7, 2000, the legislature changed the program name from reemployment compensation to unemployment insurance and redesignated reemployment-compensation benefits as unemployment benefits and reemployment-compensation judges as unemployment-law judges. 2000 Minn. Laws ch. 343, § 1. Because Ward’s claim was filed and the reemployment-compensation judge issued a decision before the effective date of the amendments, we use the previous terminology. See Boser v. AT & T Communications, Inc., No. CX-94-1893, 1994 WL 762591, at *1 n.1 (Minn. App. Feb. 28, 1994) (using terminology of earlier version of statute when incidents in the claim occurred before effective date of legislation changing terminology).