This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-542

Abdullahi A. Musse,
Relator,

vs.

Dolphin Industrial Group,
Respondent,

Commissioner of Economic Security,
Respondent.

Filed December 1, 1999
Affirmed
Crippen, Judge

Department of Economic Security
File No. 7156UC98

Melissa Vogt Brettingen, Mary M. Krakow, Volunteer Lawyers Network, Ltd., Fredrikson & Byron, P.A., 1100 International Centre, 900 Second Avenue South, Minneapolis, MN 55402-3397 (for relator)

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

Considered and decided by Toussaint, Chief Judge, Crippen, Judge, and Forsberg, Judge.[*]

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

CRIPPEN, Judge

Relator Abdullahi Musse appeals from the determination that he was discharged by respondent Dolphin Industrial Group for misconduct, asserting that the evidence and the law do not support the decision and that he was denied due process at the hearing before the reemployment insurance judge because of an inadequate interpreter. We affirm.

FACTS

The facts of this case are largely in dispute. Relator drove a van for respondent from March 1997 until he was discharged on September 11, 1998. He drove temporary employees to their respective jobs. His shifts varied depending on need. He typically worked from 5:00 a.m. to 11:00 a.m., and then again from 6:00 p.m. to 10:00 p.m.

On August 20, 1998, relator called in sick to work. His supervisor told him that he had not called in early enough to find a replacement. According to respondentís policy, employees are to call at least three hours prior to a shift. Respondent maintains that relatorís shift started at 5:00 a.m. and that he called in sick at 4:00 a.m. Relator asserts that he was scheduled to work at 3:30 p.m., and that he called respondent at 9:30 a.m. Respondent states that relator agreed to come in to work until a replacement could be found, but he did not appear. Relator maintains that he never agreed to come into work.

Relator came to work on August 21, 1998, and signed a written warning, stating that he had "failed to show up for work after confirming that he would be here." The warning also stated that future disciplinary action could include termination.

On September 11, 1998, relator again called in sick. Respondent again asserts that relator was to begin at 5:00 a.m., and he called at 4:00 a.m. Relator contends that he was to begin work at 3:00 p.m., and he called at 9:30 a.m. His supervisor again told him that he should come into work until a replacement could be found. Relator states that he did not agree to come into work that day. Respondent terminated relatorís employment for his failure to come to work September 11, 1998.

Relator applied for reemployment benefits on September 28, 1998. The Department of Economic Security originally determined that relator was entitled to benefits. Respondent appealed. The reemployment insurance judge reversed the initial determination. The commissionerís representative agreed with the reemployment insurance judge. Relator appealed this determination by writ of certiorari.

D E C I S I O N

I.

Relator contends that the commissionerís representative erred in its findings and conclusion that he was discharged for misconduct. The determination that someone was discharged for misconduct is a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., Inc., 346 N.W.2d 159, 161 (Minn. 1984). The commissionerís representativeís findings of fact are viewed "in the light most favorable to the decision below" and will not be disturbed "if there is evidence reasonably tending to sustain those findings." Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (citation omitted). The ultimate conclusion that a person is ineligible for reemployment benefits is a question of law that is reviewed de novo. Id.

Contrary to relatorís assertions, the evidence viewed in the light most favorable to the decision supports the findings of fact of the commissionerís representative. The commissionerís representative found that on September 11, 1998, relator called in sick less than three hours before his 5:00 a.m. shift, that he agreed to come in until a replacement arrived, but that he failed to appear. The commissionerís representative concluded that relator, particularly because of the prior warning in August, should have known that his failure to come into work could result in termination. Testimony at the hearing, the August 21 written warning signed by relator, the September 11 termination notice, and the memo from relatorís supervisor provide evidence that reasonably supports these findings.

These facts support the conclusion by the commissionerís representative that relator was terminated for misconduct as a matter of law. "Misconduct," for purposes of determining whether someone is entitled to reemployment benefits, is defined as:

intentional conduct showing a disregard of:
(1) the employerís interest;
(2) the standards of behavior that an employer has the right to expect of the employee; or
(3) the employeeís duties and obligations to the employer.

Minn. Stat. ß 268.095, subd. 6 (1998). The burden of proof is on the employer to establish by a preponderance of the evidence that the employee committed misconduct. Ress, 448 N.W.2d at 523.

The commissionerís representative concluded that relatorís failure to appear for work on September 11, 1998, after agreeing to work until a replacement could be found, constituted misconduct. This conclusion is lawful. It was in respondentís interest for relator to work until a replacement could be found; it was reasonable for respondent to expect relator to work the beginning of the shift after he agreed to do so; and relator then had a reasonable duty to work until his replacement arrived. That relator acted with intentional disregard of these interests and responsibilities is supported by the occurrence of an identical series of events in August, and the warning by respondent that such behavior in the future could result in termination.

Relator notes the commissionerís representative also found that relator had a "history of problems with attendance." Relator not only denies the finding, but also argues that it is irrelevant because it was not respondentís stated reason for dismissal. See Lumpkin v. North Central Airlines, Inc., 296 Minn. 456, 461, 209 N.W.2d 397, 401 (1973) (allegations of misconduct that were not the reasons for the termination irrelevant); Hansen v. C.W. Mears, Inc., 486 N.W.2d 776, 780 (Minn. App. 1992) (to disqualify a person from reemployment benefits, the employer must prove that the misconduct was the cause of the dismissal), review denied (Minn. July 16, 1992). But the commissionerís representative made additional findings relevant to respondentís stated reason for the termination, determining that relator had agreed to work until a replacement could be found but did not appear.

Relator also asserts that respondentís policy of requiring employees to call in sick three hours before a shift is unreasonable. However, relatorís failure to call in three hours ahead of time is not the reason respondent stated for discharging him, and it is not the ground principally relied on by the commissionerís representative for its finding of misconduct. The misconduct finding was based primarily on relatorís failure to report to work after he agreed to do so, particularly when he had been warned three weeks previously that a recurrence could result in termination.

II.

Relator contends that he was denied due process at the hearing before the reemployment insurance judge because his interpreter was inadequate. Relator alleges this for the first time on appeal, but we find that review of the issue is in the interest of justice. See Minn. R. App. P. 103.04 (appellate court may review any matter "as the interest of justice may require").

The applicable Department of Economic Security rule states that an interpreter will be provided when one is requested seven days prior to a hearing. Minn. R. 3310.2911. If no request is made, but a principal party or witness requires an interpreter, the reemployment insurance judge must continue the hearing and appoint an interpreter. Id.

Relator contends that the reemployment insurance judge should have continued the hearing. But relator appeared at the hearing with his cousin, who explained that he came to act as relatorís interpreter. The cousin was sworn in and acted in that role. Relatorís due process argument relates more to whether the interpretation provided by his cousin was so poor that he was thereby denied a fair hearing.

In reviewing whether errors in translation deny due process, the court applies the broad standard of "whether the translation was Ďon the whole adequate and accurate.í" State v. Her, 510 N.W.2d 218, 223 (Minn. App. 1994) (quoting State v. Mitjans, 408 N.W.2d 824, 832 (Minn. 1987)), review denied (Minn. Mar. 15, 1994). A translation can "yield[] an often incoherent English" and still meet this standard. Her, 510 N.W.2d at 223. The question is whether "the essence of the * * * testimony was adequately conveyed to the [factfinder]." Id. (quoting Mitjans, 408 N.W.2d at 832)). The burden is on the person contesting the translation to prove that this was not the case. Id. at 221.

The transcript reveals that relatorís cousin often did not smoothly translate what was being said and what relator had to say. But the transcript on the whole reflects that he adequately and accurately interpreted the essence of respondentís testimony and relatorís response. Given the broad standard of review, relatorís due process rights were not violated.

Affirmed.

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