This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Susan J. Smith,





Applied Systems (Corp.),





Commissioner of Economic Security,



Filed August 14, 2001


Amundson, Judge


Department of Economic Security

File No. 697700


Peter B. Knapp, William Mitchell Law Clinic, Karen Kurth, (certified student attorney), 875 Summit Avenue, St. Paul, MN 55105 (for relator)


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


            Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Stoneburner, Judge.

U N P U B L I S H E D  O P I N I O N


            The commissioner’s representative determined that relator was disqualified from receiving unemployment benefits because of excessive absenteeism.  We reverse. 


            Relator Susan Smith was employed full time as an accounting supervisor at Applied Systems Corporation (ASC) from 1991 until April 26, 2000, when she was terminated for excessive absenteeism.  In November 1999, ASC had notified Smith that she had exceeded her allotted sick and vacation days for 1999 by 15 days.  She received a warning that she must improve her attendance and that failure to do so would result in further disciplinary action including possible termination.  She was further informed that ASC would allow no more than two absences during the next six months.

            Smith called in sick on January 3 and 4, 2000.  Although Smith had not yet accrued vacation or sick days for the calendar year, she believed that that an employee could take vacation or sick days before they were accrued.  In fact, the employer did allow this practice.  The employer’s representative at the hearing testified that ASC would advance people up to one week of vacation and sick time if the situation warranted.  On March 8, 2000, Smith called to request, and was granted, a vacation day because she was having car problems.  But she was told that her absence would be considered unexcused because she had not requested it a day in advance. 

            On April 19, 2000, shortly before her shift started, Smith called work to state that her pet bird was gravely ill and she needed to take the bird to the veterinarian.  She called back later to report that the bird had died, and that she was so upset that she requested the next two days off.  She told the employer to let her know if this was a problem, and her supervisor agreed to do so.  When she did not hear back from the employer, she did not report to work for the next two days.  ASC discharged Smith from employment on April 26, 2000 because she exceeded the two authorized absences she was allowed during the six-month probationary period.

            Smith applied for unemployment compensation from the Minnesota Department of Economic Security.  The department denied benefits because she was discharged for employee misconduct.  On appeal, an unemployment law judge conducted an evidentiary hearing and affirmed the denial of benefits.  The commissioner’s representative affirmed that decision.  This appeal followed by writ of certiorari.


An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4 (2000).  Whether an employee’s acts constitute misconduct is a question of law upon which we are free to exercise our independent judgment.  Ress. v. Abbott Northwestern Hosp., Inc.,448 N.W.2d 519, 523 (Minn. 1989). 

Minnesota law defines “employment misconduct” as

(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(a) (2000).  Employment misconduct does not include

[i]nefficiency, inadvertence, simple unsatisfactory conduct, poor performance because of inability or incapacity, or absence because of illness or injury with proper notice to the employer.

Minn. Stat. § 268.095, subd. 6(b) (2000).  

The relevant issue here is not whether the former employee should have been terminated, but whether, now terminated, the former employee should be denied unemployment compensation benefits.  St. Williams Nursing Home v. Koep,369 N.W.2d 33, 34 (Minn. App. 1985).  We construe unemployment compensation laws liberally because they are remedial and intended to help workers involuntarily unemployed through no fault of their own.  Hendrickson v. Northfield Cleaners,295 N.W.2d 384, 385 (Minn. 1980).  An employee’s good-faith errors, as a result of miscommunication between the employee and the employer, may not constitute misconduct.  See Tuckerman Optical Corp. v. Thoeny, 407 N.W.2d491, 493 (Minn. App. 1987). 

Here, Smith had been disciplined by her employer for excessive absenteeism.  The employer then terminated her for violating the provisions of a warning.  It does not necessarily follow, however, that Smith’s actions constitute misconduct.  Smith believed in good faith that company practice allowed taking vacation days before they were actually accrued.  Further, when she called ASC on April 19, she gave proper notice to the employer that she wished to take time off for the next two days.  She specifically asked whether that would be a problem, indicated a willingness to come in if it would jeopardize her job, and requested the employer call her at home if she were needed at work.   ASC did not call her back, but terminated her instead. 

Smith’s conduct in taking another absence may have been unsatisfactory to her employer, but she requested that absence when she encountered a personal problem.  This is not the kind of conduct that demonstrates a substantial lack of concern for her employment.  She was not unreasonable in relying on ASC to call back and tell her whether she was needed at work.  Smith’s actions failed to constitute employment misconduct so as to preclude her from receiving unemployment benefits.