This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Vasil Abyss,


Foreign Affairs Auto Service,

Commissioner of Economic Security,


Filed March 18, 2003


Wright, Judge


Department of Economic Security

File No. 1307301



Lee R. Johnson, Interchange Tower, 600 South Highway 169, Suite 1525, St. Louis Park, MN  55426 (for relator)


Keith Goodwin, Melissa Saterbak, 390 North Robert Street, St. Paul, MN  55101 (for respondent Commissioner)



            Considered and decided by Randall, Presiding Judge, Shumaker, Judge, and Wright, Judge.


U N P U B L I S H E D  O P I N I O N




Relator challenges the decision of the commissioner’s representative that he was discharged for misconduct, arguing that (1) the commissioner’s representative improperly relied on contradictory and conflicting testimony and (2) the unemployment law judge failed to assist relator in presenting his case.  We affirm.



Relator Vasil Abyss worked at Foreign Affairs Auto Service (Foreign Affairs) from August 2000 to September 12, 2001, when Warren Ajax, an owner of Foreign Affairs, fired Abyss. 

Relevant events preceding Abyss’s termination are as follows.  In May 2001, Abyss had a confrontation with Ajax’s son, who managed the garage.  As a result, Abyss began receiving his work assignments from Ajax or his business partner, Richard Bellfry, rather than Ajax’s son.  On August 23, 2001, Abyss notified Foreign Affairs that he planned to move to Washington and that his last day of work would be October 26, 2001.  On September 7, 2001, Abyss discovered that Foreign Affairs had terminated his health insurance prematurely.  After Abyss notified Ajax of the insurance termination, Ajax called the insurer, rectified the problem, and Abyss’s insurance was reinstated. 

On September 12, 2001, Abyss was working on a car that needed a thermostat.  Because Foreign Affairs did not have a part needed for the repair, Abyss asked Ajax for permission to leave the garage and pick up the part.  Ajax directed Abyss to stay at work because the part was being delivered.  Abyss then disregarded Ajax’s directions and obtained a check to pay for the part from Bellfry, who was unaware that Ajax had instructed Abyss to remain at the garage.  As Abyss was leaving the garage to pick up the part, Ajax confronted Abyss and fired him.

On September 21, 2001, Abyss filed for unemployment benefits, which were denied because the Department of Economic Security found that Abyss had engaged in disqualifying employment misconduct.  Abyss appealed the decision and, on December 24, 2001, an unemployment law judge conducted a hearing by telephone with Ajax and Abyss.  The unemployment law judge also concluded that Abyss was disqualified from receiving unemployment benefits due to employment misconduct. 

Abyss appealed the unemployment law judge’s determination, which was affirmed by the commissioner’s representative.  The commissioner’s representative determined that Abyss’s disregard for his employer’s instruction constituted misconduct that disqualified him from receiving benefits.  Abyss brought a certiorari appeal of the decision of the commissioner’s representative.



On appeal, this court reviews the commissioner’s decision, not that of the unemployment law judge.  Tuff v. Knitcraft Corp., 526 N.W.2d 50, 51 (Minn. 1995).  We review findings of fact in the light most favorable to the commissioner’s decision and will not disturb them if there is evidence that reasonably tends to sustain them.  Ress v. Abbott N.W. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  Whether an employee committed disqualifying misconduct is a mixed question of fact and law.  Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984).  The determination of whether the employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  Whether the act constitutes misconduct is a question of law on which this court is “free to exercise its independent judgment.”  Ress, 448 N.W.2d at 523 (citations omitted).



Abyss argues that the evidence does not support the commissioner’s finding that he committed disqualifying misconduct.  An employee who is discharged for employment misconduct is disqualified from receiving unemployment-compensation benefits.  Minn. Stat. § 268.095, subd. 4(1) (2002).  Employment misconduct is defined as

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.


Id., subd. 6(a)(1) (2002).  The issue, therefore, is not whether the employer’s actions are justified, as in a wrongful-termination case, but whether the employee engaged in disqualifying misconduct.  See Ress, 448 N.W.2d at 523. 

We apply a two-prong test to determine whether an employee’s actions constitute “employment misconduct” within the meaning of Minn. Stat. § 268.095, subd. 6(a)(1).  Houston v. Int’l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn. 2002).  The employee’s conduct must “(1) be intentional and (2) disregard standards of behavior the employer has a right to expect or the employee’s duties and obligations to the employer.”  Id.  The first prong of the Houston test requires an intentional act.  The second prong of the Houston test requires an analysis of the employee’s intent that is “separate and distinct” from the intentional act required in the first prong.  Id. at 150.  Thus, the Houston test for employment misconduct requires

that the employee not only engaged in intentional conduct, but also intended to, or engaged in conduct that evinced an intent to, ignore or pay no attention to his or her duties and obligations or the standards of behavior the employer has a right to expect.


Id.  A single isolated incident based on a misunderstanding or a good-faith error in judgment not adversely affecting the employer’s interests is not sufficient to establish intentional misconduct.  Sticha v. McDonald’s No. 291, 346 N.W.2d 138, 140 (Minn. 1984) (finding no disqualifying misconduct where employee inadvertently misled employer to believe employee was taking time off for funeral rather than wake).  Instead, the conduct must be “deliberate, calculated and intentional.”  McGowan v. Executive Express Trans. Enters., Inc., 420 N.W.2d 592, 596 (Minn. 1988). 

Here, Abyss intentionally disregarded Ajax’s directive.  The record establishes intentional conduct, not a good-faith mistake based on miscommunication.  The first prong of the Houston test is satisfied.

  Under Houstons second prong, we review the record to determine whether Abyss intended to disregard the standards of behavior his employer has a right to expect.  An employee’s deliberate refusal to carry out a directive of the employer can constitute misconduct.  Id. 420 N.W.2d at 595-96.  When the misconduct is deliberate and intentional, a single incident is sufficient to disqualify an employee from receiving unemployment benefits.  Ress, 448 N.W.2d at 524.

            Here, Abyss disregarded standards his employer had a right to expect when he disregarded Ajax’s specific instruction to wait for the part to be delivered and obtained a check from the other owner with the intent to pick up the part himself.  When Abyss disobeyed the instruction and failed to disclose to the other owner that his request had already been rejected by Ajax, Abyss intentionally disregarded the standards of behavior his employer had a right to expect.  Thus, Abyss’s conduct satisfies the second prong of the Houston test.  The commissioner’s representative did not err in determining that Abyss engaged in disqualifying employee misconduct.

Abyss argues further that the decision was erroneously based on conflicting testimony.  On review, we give substantial “deference to the fact-finding processes of the administrative agency.”  Taylor v. Beltrami Elec. Coop., Inc., 319 N.W.2d 52, 56 (Minn. 1982).  While the parties differ regarding the events that occurred on dates prior to Abyss’s termination, the parties agree that, on the date of his termination, Abyss asked for a check to pick up a part after Ajax told him not to do so.  Without resolving the conflicting testimony, Abyss’s direct refusal to follow his employer’s instructions is sufficient to support the determination of disqualifying misconduct.

At oral argument, Abyss argued that the premature termination of his insurance coverage indicates that Ajax planned to terminate Abyss prior to the events that led to the actual termination.  Ajax testified that, when notified of the mistaken cancellation, he called the insurance provider and the problem was remedied.  This insurance dispute has no bearing on the undisputed facts that support the denial of benefits — namely, that Abyss intentionally disregarded his employer’s direction regarding how the part would be obtained.  Thus, we conclude that the commissioner’s representative did not err in finding that Abyss was terminated as a result of employment misconduct.


            Abyss also argues that the unemployment law judge failed to assist him in presenting his case, in violation of Minn. R. § 3310.2921 (2001) (providing that unemployment law judge “should assist unrepresented parties in the presentation of evidence.”).  Abyss claims that by interrupting him during his examination of Ajax, the unemployment law judge prevented Ajax from fully answering the questions about terminating Abyss’s insurance.  Our review of the record establishes that the unemployment law judge interrupted Abyss because Abyss was testifying rather than questioning Ajax.  Abyss’s reliance on Miller v. Int’l Express Corp., 495 N.W. 2d 616 (Minn. App. 1993), is misplaced.  In Miller, relator raised a colorable claim of minimum-wage violations, but the commissioner’s representative made no determination on that issue.  Id. at 618.  This court cautioned the unemployment judge to “be especially careful to insure fairness to all persons bringing grievances” and remanded the minimum-wage issue to the commissioner’s representative.  Id. (quoting Plowman v. Copeland, Buhl, & Co., Ltd., 261 N.W.2d 581, 584 (Minn. 1977)).  Here, the unemployment law judge properly addressed all of the issues that Abyss raised and, as discussed above, the evidence regarding the insurance dispute has no bearing on the facts regarding Abyss’s conduct resulting in his termination.

Because the commissioner’s representative did not err in determining that Abyss engaged in disqualifying misconduct, we affirm.