This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1406

 

Jason Rebeck,
Relator,

vs.

Special Effects Barber & Beauty,
Respondent,

Commissioner of Employment and Economic Development,
Respondent.

 

Filed June 7, 2005

Affirmed

Toussaint, Chief Judge

 

Department of Employment and Economic Development

File No. 4527-04

 

Jason W. Rebeck, 5358 Reed Place, White Bear Lake, MN  55110 (pro se relator)

 

Special Effects Barber & Beauty, 2186 Fourth Street, White Bear Lake, MN  55110-3013 (respondent)

 

Lee B. Nelson, Linda A. Holmes, Minnesota Department of Employment and Economic  Development, E200 First National Bank Building, 332 Minnesota Street, St. Paul, MN  55101 (for respondent Commissioner of Employment and Economic Development)

 

Considered and decided by Toussaint, Chief Judge; Kalitowski, Judge; and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            Relator challenges the decision by the commissioner’s representative that he was discharged from employment due to misconduct.  Because the record supports the commissioner’s determination that relator Jason W. Rebeck was discharged for employment misconduct and was therefore disqualified from receiving unemployment benefits, we affirm. 

 

D E C I S I O N

            On certiorari appeal, a reviewing court examines the decision of the commissioner’s representative, rather than that of the unemployment law judge.  Kalberg v. Park & Recreation Bd., 563 N.W.2d 275, 276 (Minn. App. 1997).  The commissioner’s factual findings are reviewed in the light most favorable to the commissioner’s decision, and this court will not disturb those findings provided there is evidence that reasonably tends to sustain them.  Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).  The commissioner’s “conclusions are not binding upon this court if they do not have reasonable support in the findings.”  Marty v. Digital Equip. Corp., 345 N.W.2d 773, 775 (Minn. 1984).

“Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002) (citation omitted).  The determination of whether an employee committed a particular act is a question of fact.  Scheunemann v. Radisson S. Hotel, 562 N.W.2d 32, 34 (Minn. App. 1997).  “Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.”  Schmidgall, 644 N.W.2d at 804.  Misconduct for disqualification purposes is

any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee; or (2) that demonstrates a substantial lack of concern for the employment.

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.

 

Minn. Stat. § 268.095, subd. 6(a) (2003).  “As a general rule, refusing to abide by an employer’s reasonable policies and requests amounts to disqualifying misconduct.” Schmidgall, 644 N.W.2d at 804.  When an employee is discharged because of employment misconduct, he or she is disqualified from receiving unemployment-compensation benefits.  Minn. Stat. § 268.095, subd.  4 (Supp. 2003).[1]  

            Rebeck began employment as a receptionist with respondent salon Special Effects Barber & Beauty (SEBB) on November 6, 2003.  His duties included opening up and closing the salon, booking appointments, ringing up clients’ transactions for products and services, and printing payment detail and summary reports when opening up the register in the morning.  The reports were compared with the register receipts to reconcile the transactions from the previous day.  Employees were required to report to management any discrepancies between the register receipts and the daily financial reports.  Rebeck was discharged on February 9, 2004, after editing a transaction to reconcile a discrepancy he discovered between the payment detail report and the register receipts.

The commissioner’s representative found that Rebeck’s conduct was not a good faith error in judgment because no judgment was required.  The commissioner’s representative found that

[t]he evidence showed that [relator] knew that if he discovered a discrepancy between the payment detail report and the daily receipts in the till, [employer] expected him to bring it to management’s attention. This expectation was reasonable and did not impose an unreasonable burden on [relator]. Despite this knowledge, [relator] not only made a deliberate decision to violate company policy by not informing management of a financial discrepancy, he actually went into the computer system to cover up the discrepancy.

.  .  . [Relator’s] decision .  .  . to cover up the discrepancy instead of bringing it to management’s attention constituted intentional or negligent conduct demonstrating a serious violation of the standards of behavior that [Employer] reasonably had a right to expect of him. At the very least, his conduct was indifferent and demonstrated a substantial lack of concern for the employment.

 

            On appeal, Rebeck argues that because SEBB had no written policies of company procedures or other documentation for his review regarding the receptionist position, there cannot be a determination of misconduct based on a violation of the company’s expectations.  But whether an act qualifies as misconduct is not dependent upon a written handbook or policy manual.  Rather, “[t]he focus of the definition of misconduct is on ‘standards of behavior the employer has the right to reasonably expect of the employee. .  .  .’”  Brown v. Nat’l Am. Univ., 686 N.W.2d 329, 333 (Minn. App. 2004) (quoting Minn. Stat. § 268.095, subd. 6(a)(1)) , review denied (Minn. Nov. 16, 2004).  An “employer has the right to expect scrupulous adherence to procedure[s] by employees handling the employer’s money.”  McDonald v. PDQ, 341 N.W.2d 892, 893 (Minn. App. 1984).

            Here, the record shows that Rebeck was aware that he was required to bring to the attention of management any discrepancies he found when reconciling the previous day’s totals.  Rebeck did not do so, though in his defense, there was no manager available at the time to report the discrepancy to.  However, Rebeck was not discharged solely for failure to notify management; his act in editing a transaction to balance the financial reports with the register receipts also played a part in the termination decision.

            Rebeck argues that his editing of the transaction was an error made in good faith.  Good faith errors in judgment are not employment misconduct. Minn. Stat. § 268.095, subd. 6(a).  But Rebeck was aware that he did not have authority to edit a transaction without approval from management, and he failed to report the discrepancy to management.  Refusal to abide by an employer’s reasonable policies constitutes employment misconduct.  Schmidgall, 644 N.W.2d at 804.

            Affirmed.