This opinion will be unpublished and

may not be cited except as provided by

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







Amber Gavin,







Commissioner of Economic Security,




Filed October 2, 2001


G. Barry Anderson, Judge


Department of Economic Security

File No. 856400


Amber T. Gavin, 4975 323rd Avenue Northwest, Cambridge, MN  55008-5003 (pro-se relator)


Zanab, Inc., 537 North Main Street, Cambridge, MN 55088-5003 (respondent/employer); and


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


            Considered and decided by Peterson, Presiding Judge, Amundson, Judge and G. Barry Anderson, Judge.



U N P U B L I S H E D  O P I N I O N



Relator appeals the commissioner’s representative’s decision that she is disqualified from receiving unemployment benefits because of employee misconduct, arguing that she had good cause to walk off the job and that her employer was untruthful in his testimony at the evidentiary hearing.  We affirm.


Respondent Zanab Inc., which took over operation of the Outdoorsman Grill on May 1, 2000, employed relator Amber R. Gavin as a full-time dishwasher.  In June 2000, respondent began working with a new payroll company and experienced problems changing over to the new payroll system, which resulted in a one-or-two day delay in paycheck distribution.  The manager, however, informed employees, including relator, that they could borrow cash from the restaurant against their paychecks until the paychecks arrived.  Relator did not accept the offer and told her manager that she “would never work without [her] check again because I work from check to check.”

On July 4, 2000, at around 10:30 a.m., relator asked her manager where the payroll checks were; it was payday and the checks normally arrived at 10:00 a.m.  Respondent told relator that he did not know the whereabouts of the checks.  Shortly thereafter, the manager asked relator to run an errand.  Relator refused, stating that she did not have enough money to pay for gas.  Relator then left work without notifying her manager.  When asked at the hearing why she (1) did not ask her manager when the checks would arrive or (2) inquire about a cash advance, relator replied, “I don’t feel [that] I should have to accept cash when in June I told him that I could not work without my check.”  Shortly after relator had walked off the job, the manager told employees that the checks would be late because the payroll company was closed on Independence Day and again offered employees the opportunity to borrow cash against their paychecks.

Relator did not return to work on July 5th although she was scheduled to work, but called to see if the checks had arrived.  They had not.  When relator returned to work on July 6th to pick up her check, she was told there was no further work available for her.

Relator applied for unemployment benefits with the Minnesota Department of Economic Security and was informed that she had been found eligible to receive benefits.  Respondent appealed the decision.  On November 7, 2000, an unemployment law judge conducted an evidentiary hearing and concluded that relator was disqualified from receiving unemployment benefits because of employee misconduct.  The commissioner’s representative affirmed the decision.  This appeal follows.

 D E C I S I O N


On appeal from a denial of unemployment benefits, an appellate court must review the decision of the commissioner’s representative, rather than that of the unemployment law judge.  Weaver v. Minnesota Valley Labs. Inc., 470 N.W.2d 131, 133 (Minn. App. 1991).  The decisions of the commissioner’s representative are to be accorded “particular deference,” and a reviewing court must affirm if there is “reasonable support in the evidence” to sustain that decision.  Tuff v. KnitcraftCorp., 526 N.W.2d 50, 51 (Minn. 1995 (citation omitted).

An employee discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (2000).  Whether an employee 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 views the commissioner’s representative’s factual findings in the light most favorable to the decision and sustains those findings when the evidence in the record reasonably tends to support them.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  But whether the facts satisfy the statutory standard for disqualification from reemployment benefits is a question of law, which allows this court to exercise its independent judgment.  Id.; see Ress v. Abbot Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989) (recognizing the ultimate determination whether a person is ineligible for reemployment benefits presents a question of law subject to de novo review).

The statute defines disqualifying 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). 

Leaving work early without notice or permission is disqualifying employment misconduct.  Colburn, 346 N.W.2d at 161. An employee’s failure to report to work when scheduled is also employment misconduct.  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  Relator admitted that she both left early without giving notice or receiving permission and failed to report to work when scheduled.  After reviewing the record, the commissioner’s representative found that because relator did not attempt to reconcile or even notify her manager of her problem and did not ask for a cash advance, an option the respondent made available previously, she committed misconduct by refusing to show up for work and was thus disqualified from unemployment compensation.

Relator, however, challenges the commissioner’s representative’s decision, arguing that she had “good cause” for not returning to work because she had not received her paycheck.   But the commissioner’s representative rejected this argument, stating:

Notwithstanding that [relator] may have been unhappy with the delay in her paycheck, her concern in this regard does not excuse her behavior in walking off the job on July 4, 2000 and failing to report for scheduled work on July 5[th] and July 6[th], 2000.  It is clear from the evidence that the employer was not at fault in connection with the delay, and it is uncontroverted that [relator] was told, when a similar brief delay occurred in June 2000, that she could request an advance from the employer until her check arrived. * * * We are fully persuaded that [relator’s] course of conduct evinced a deliberate disregard of the standards of behavior which the employer had the right to expect of her.  This behavior clearly constituted employment misconduct * * * .


The record amply supports the commissioner’s representative’s decision.  Relator admitted at the hearing that she left work early and failed to show up for work when scheduled.  While assuring prompt, timely, and accurate payment is the responsibility of the employer, the record reveals that the tardiness in payroll delivery was not the fault of the employer.  Further, the restaurant manager testified that after relator walked off the job, he offered employees a cash advance if they needed money immediately, as he had the previous month.  Accordingly, given our extremely limited scope of review, we conclude that the commissioner’s representative did not err when concluding that the actions of the relator constituted misconduct, thus disqualifying her from unemployment compensation.

On appeal, relator included affidavits and other documentation in the appendix to her brief to support her argument that respondent was not truthful at the hearing.  These additional documents were not part of the record before the unemployment law judge.  The record on appeal comprises only the papers, exhibits, and transcripts of the testimony before the unemployment law judge.  Minn. R. Civ. App. P. 110.01; Minn. R. Civ. App. P. 115.04. 

It is well settled that an appellate court may not base its decision on matters outside the record on appeal, and that matters not produced and received in evidence below may not be considered.


Plowman v. Copeland, Buhl & Co., 261 N.W.2d 581, 583 (Minn. 1977) (citations omitted).  Therefore, this court cannot and does not consider the documents appended to relator’s brief.  See e.g. Deike v. Smelting, 413 N.W.2d 590, 592 (Minn. App. 1987) (pages of union contract appended to brief but not part of the record below could not be considered on appeal).