This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-96-2504

Jose Torres,

Relator,

vs.

Conagra, Inc.,

Respondent,

Commissioner of Economic Security,

Respondent.

Filed July 29, 1997

Reversed

Norton, Judge

Department of Economic Security

Agency File No. 7348 UC 96

Jose Torres, 1538 No. Spring Avenue, #30, Worthington, MN 56187 (Pro Se)

Conagra, Inc., Worthington Pork Plant, c/o Employer's Unity, PO Box 782, Westminster, CO 80030 (Respondent)

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

Considered and decided by Peterson, Presiding Judge, Norton, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Relator contends the commissioner's representative abused his discretion when he found that relator was discharged for misconduct and thus disqualified from receiving reemployment insurance benefits. Relator's actions did not constitute misconduct. We reverse.

FACTS

Relator Jose Torres began working in the cutting department for respondent Conagra, Inc., at its Worthington Pork Plant in March 1992. On June 26, 1996, relator cut his thumb while at work. A doctor treated relator and sent him back to work with restrictions. Relator testified that he returned to work on June 27 but, despite the fact that his doctor had placed him on work restriction, Conagra failed to assign him to light duty. He testified that he and another injured worker were required to throw pork loins, a task that caused relator pain. Relator complained that he could not do this work, but he was not reassigned. On June 28, relator was assigned to the "below zero room," where he objected that his hands were cramping. He told his supervisor that he would not be returning Monday and the supervisor laughed.

Conagra's company policy regarding absence from the job requires the employee to call the company's answering machine before the employee is scheduled to begin working and report the employee's name, department number, social security number, and reason for absence. The answering machine is available 24 hours per day. Conagra informs its employees of this attendance policy at orientation and in the employee handbook. Although the orientation is conducted in both English and Spanish, the employee handbook is only in English. The record shows that relator had called in to be absent from work on prior occasions. Conagra policy allows an employee who has been absent without notice to retain his employment by presenting a doctor's slip or an equivalent excuse.

On Monday, July 1, relator did not go to work, nor did he call. On Tuesday, July 2, relator called, spoke with "Jim," the assistant personnel director who speaks Spanish, and explained that he was in great pain and would not be in to work. Relator called again on Wednesday, July 3, to report that he would not be in to work. Relator did not report back to work or call in again. Relator explained that he did not call the 24-hour answering machine because he did not know that rule applied to an employee who had been injured. The union representative who testified at the hearing corroborated relator's version of the facts. Conagra claims that relator never called in on July 2 or 3 because it has no tape recording of the call.

Conagra sent relator a certified letter, which informed him that he had violated company policy by failing to call in for three consecutive days. Conagra failed, without explanation, to present this letter as an exhibit for the hearing. Testimony regarding this letter was inconsistent. Conagra's personnel manager, Randy Bruinsma, first testified that Conagra sent the letter on July 10 and did not notify relator of his termination in that letter, but later testified that he had sent the letter on July 9th and it included this language:

[E]mployees who fail to notify the company of their absence for three consecutive days will be considered as having voluntarily terminated their employ. Based on the above criteria, we consider you to have voluntarily quit your employment and have marked your records accordingly. If we do not hear from you within three days, your locker will be cleaned out and your belongings will be destroyed.

Although Bruinsma first testified that the letter gave relator three days to respond and was not a "separation of employment" letter, he later admitted, "So at that point, I think we were telling him he was terminated." The reemployment judge reprimanded Conagra for failing to present either the July 10 letter or the employee handbook, containing the attendance policy, at the hearing.

After relator received the letter of July 10, he understood that he had three working days within which to respond before he would be terminated. He visited Conagra's health services department on July 15. Someone there informed him that he had been fired for "no show no call." Health services sent relator to personnel, where they confirmed that he had been fired.

Relator filed an application for reemployment insurance benefits. A claims representative found that relator was disqualified from receiving benefits because he had voluntarily terminated his employment by failing to show up for work. After an appeal, a reemployment insurance judge reversed that decision and found relator had not been discharged for misconduct and was entitled to reemployment insurance benefits. On Conagra's appeal, the commissioner's representative determined that relator had been discharged from his employment for misconduct due to his failure to present himself for work and his failure to call to explain his absence.

D E C I S I O N

Relator challenges the determination that he is disqualified from receiving reemployment insurance benefits because he committed misconduct. See Minn. Stat. § 268.09, subd. 1(b) (1996) (when discharged for misconduct, employee is disqualified from receiving reemployment insurance benefits). Whether an employee has committed misconduct is a mixed question of fact and law. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). This court must view the findings of the commissioner's representative in a light most favorable to the decision. White v. Metropolitan Med. Ctr., 332 N.W.2d 25, 26 (Minn. 1983). This court, however, need not defer to the legal conclusions of the commissioner's representative. Meehan v. Lull Corp., 466 N.W.2d 14, 16 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).

The reemployment insurance statutes "are humanitarian in nature and are to be liberally construed in favor of awarding benefits." Meehan, 466 N.W.2d at 16. Consequently, the employer has the burden to prove an employee is disqualified from receiving benefits by establishing by the greater weight of the evidence that the employee committed misconduct. Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 459-60, 209 N.W.2d 397, 400 (1973); Meehan, 466 N.W.2d at 16. In addition, the court must narrowly construe misconduct as a disqualification from benefits. Smith v. Employers' Overload Co., 314 N.W.2d 220, 222 (Minn. 1981).

"Misconduct" is a "wilful or wanton disregard of an employer's interests" such as "deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee," or an "intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer." Tilseth v. Midwest Lbr. Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (adopting definition set forth in Boynton Cab Co. v. Neubeck, 296 N.W. 636, 640 (Wis. 1941)). Misconduct may also be described as "conduct demonstrating a lack of concern by the employee for her job." Feia v. St. Cloud State College, 309 Minn. 564, 565, 244 N.W.2d 635, 636 (1976).

The commissioner's representative here concluded that relator committed misconduct by failing to report for his scheduled work and by failing to notify his employer of his absence. See Torgerson v. Goodwill Indus., Inc., 391 N.W.2d 35, 37-38 (Minn. App. 1986) (failure to report for scheduled work and notify employer in advance of intended absences may constitute disqualifying misconduct). We disagree. In this case, relator's actions demonstrate a misunderstanding, not misconduct.

Given the humanitarian nature of the reemployment insurance statute, we must exercise sensitivity when dealing with the issues of diversity, English as a second language, and illiteracy, as are present here. Relator explained, with the assistance of an interpreter, that he did not understand the phone-in policy to apply in the case of absence due to a work-related injury. We do not know the specifics of Conagra's policy because Conagra failed to present it at the hearing. After calling in and speaking with personnel about his situation, relator did not understand that he needed to call in every day thereafter.

Relator's confusion was only increased by the contents of the certified letter. We do not know the letter's exact contents either, nor did the commissioner's representative, because Conagra failed to present the letter at the hearing. According to Bruinsma's testimony, the letter could have given relator three days to respond before his termination took effect or could have informed him of his termination. The commissioner's representative found that relator "did not do anything until July 15, 1996," but that finding does not account for the fact that the third day fell on Saturday, July 13. Due to the absence of Conagra's employee policies, we do not know what employees were to do if a deadline fell on a weekend. If the deadline was Monday, July 15, then relator reported to the health service on time. Even if the deadline was Saturday, July 13, relator responded quickly on the next available work day in an effort to preserve his job.

We disagree with the conclusion of the commissioner's representative that these facts demonstrate relator's "lack of concern * * * for his job." Indeed, the record suggests the contrary. Relator had endured physical pain and ridicule on the job because his supervisor refused to place him on light duty. Although the commissioner's representative implies that relator nefariously cut the cast on his arm, the record suggests he needed to cut the cast down to allow him more mobility to perform the tasks that he had been assigned. These facts do not demonstrate conduct so "wilful or wanton" as to constitute misconduct. Tilseth, 295 Minn. at 374, 204 N.W.2d at 646.

Reversed.

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