This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-168

 

James Krismer,

Relator,

 

vs.

 

McGough Construction Co., Inc.,

Respondent,

 

Commissioner of Economic Security,

Respondent.

 

Filed August 7, 2001

Affirmed
Klaphake, Judge

 

Department of Economic Security

File No. 8400 00

 

James Krismer, Rural Route 2, Box 245, Zumbro Falls, MN  55991 (pro se relator)

 

McGough Construction Co., Inc., 2737 North Fairview, St. Paul, MN 55113 (pro se employer)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge, Klaphake, Judge, and Foley, Judge.^*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Pro se relator James D. Krismer challenges decisions by a representative of respondent Commissioner of Economic Security determining that he was disqualified from receiving unemployment insurance benefits because he quit his employment with respondent McGough Construction Co., Inc. and that he was overpaid $662 in benefits.  Because the commissioner’s representative did not clearly err in finding that relator quit his employment when he asked his foreman to lay him off and his foreman did so, we affirm.

D E C I S I O N

            An employee is disqualified from receiving unemployment benefits unless he or she “quits” because of a good reason caused by the employer.  Minn. Stat. § 268.095, subd. 1(1) (2000).  “A quit * * * occurs when the decision to end the employment was, at the time the employment ended, the employee’s.”  Id., subd. 2(a) (2000).

            The commissioner’s representative found that relator quit his employment when he told the construction foreman to lay him off and the foreman did so.  In E.H. Schrupp & Assoc., Inc. v. Stansberry, 412 N.W.2d 808, 809 (Minn. App. 1987), the commissioner’s representative determined that a former employee of a lawn maintenance service was entitled to receive benefits after he “adamantly requested [the employer] to lay him off” and the employer granted his request, even though a few weeks of work remained in the lawn maintenance season.  This court reversed the decision of the commissioner’s representative and concluded that the employee voluntarily quit his job and was not entitled to benefits.  Id. at 810.  In so doing, this court emphasized that the employee “was not notified that he was being laid off, and the ‘cause’ of his unemployment was not a pending layoff, but a voluntary decision on his part to leave.”  Id. at 810.

            Similarly, here, McGough Construction may have agreed to lay relator off, but relator made it clear that he wanted to leave because the work had slowed down and because he preferred being laid off on Friday, rather than during the middle of the next week, to maximize his unemployment benefits.  Thus, the “cause” of relator’s separation from employment was of his own making; the decision to end employment was relator’s.

            The commissioner’s representative’s determination regarding the reason or cause of an employee’s separation from work is a fact question.  Embaby v. Department of Jobs & Training, 397 N.W.2d 609, 611 (Minn. App. 1986); Beyer v. Heavy Duty Air, Inc., 393 N.W.2d 380, 382 (Minn. App. 1986).  Factual disputes are to be resolved by the commissioner.  Harringer v. AA Portable Truck & Trailer Repair, Inc., 379 N.W.2d 222, 224 (Minn. App. 1985).  Given this standard of review, we cannot conclude that the commissioner’s representative clearly erred in finding that relator “quit” his employment when he told his foreman to lay him off.

            We affirm the decision of the commissioner’s representative.

            Affirmed.