This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Casey M. Kieft,
Department of Employment and Economic Development,
Filed April 18, 2006
Department of Employment and Economic Development
File No. 9324 05
Casey M. Kieft,
RK Builders, c/o Rick
Linda A. Holmes, Department
of Employment and Economic Development,
Considered and decided by Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
Relator Casey M. Kieft challenges the decision by the unemployment law judge (ULJ) that relator was discharged for misconduct and was therefore disqualified from receiving unemployment benefits; relator argues that his two mistakes, which were correctable and were not costly, should not constitute disqualifying misconduct. We reverse.
Relator was employed by respondent RK Builders from January 4, 2005, to May 6, 2005, as a lead carpenter on residential construction, earning $22 per hour.
On April 16, 2005, relator was told to cut the top of the concrete forms used for the exterior walls of a single-family home so that they were eight feet tall. He did so in a very rough fashion, varying above and below eight feet by one-half to three-quarters of an inch. The employer told him it was unsatisfactory and asked him to fix it. Relator responded that if the employer wanted to pay him to fix it, he would. Relator explained at the hearing that he was still learning when he made the first mistake. The employer explained that relator seemed to have a lackadaisical attitude toward the company. He discussed with relator the need for him to be more attentive to his work and care more about what was done. The day before the second incident, he gave relator a two-dollar-per-hour raise, thinking it might help him care more about the company.
On May 2, 2005, the employer told relator to cut forms eight feet high but he cut them eight feet, one inch. It took an estimated six hours to make adjustments to the house to correct for this mistake. Relator explained that this mistake was due to human error. The employer then discharged relator based on his poor-quality work and poor attitude.
Relator established a benefit account, and the department initially determined that relator qualified for unemployment benefits. The employer appealed. After a hearing, the ULJ ruled that the employer had a right to expect relator to perform his duties with due diligence. Before the second incident, he was counseled that his job performance was unsatisfactory. The ULJ found that relator’s failure to ensure that the correct measurements were used for concrete forms, although not intentional, displayed clearly a serious violation of the standards of behavior the employer had the right to reasonably expect of its employees. The ULJ ruled that relator was discharged for misconduct and disqualified from receiving unemployment benefits.
This certiorari appeal followed. The Department of Employment and Economic Development did not file a brief but advised this court by letter that it supported reversal on the ground that relator did not engage in misconduct.
D E C I S I O N
certiorari review, this court “may affirm the decision of the unemployment law
judge or remand for further proceedings, or reverse or modify the decision if
the substantial rights of the petitioner may have been prejudiced because the
findings, inferences, conclusions, or decision are: . . . (4) affected by  error
of law; [or] (5) unsupported by substantial evidence[.]”
current statutory scheme, the ULJ holds an evidentiary hearing and makes
findings of fact and a decision.
who is discharged based on misconduct is disqualified from receiving
Inefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, conduct an average reasonable employee would have engaged in under the circumstances, poor performance because of inability or incapacity, good faith errors in judgment if judgment was required, or absence because of illness or injury with proper notice to the employer, are not employment misconduct.
provision that simple unsatisfactory conduct does not constitute misconduct
recognizes that “employees cannot be held to a standard of perfection.” Risk v.
Eastside Beverage, 664 N.W.2d 16, 21 (
While the employer testified that he discharged relator for misconduct because he repeatedly made critical errors, we must address whether relator’s conduct constituted misconduct as a matter of law by displaying clearly a serious violation of the standards of behavior the employer had a right to reasonably expect or displays clearly a substantial lack of concern for the employer. We cannot say that relator’s conduct in making two mistakes and having a poor attitude demonstrates misconduct. Instead, his actions constitute simple unsatisfactory conduct as a matter of law.
The decision of the ULJ that relator committed misconduct and is disqualified from receiving benefits is reversed.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.