This opinion will be unpublished and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

A05-766

 

 

Charles H. Register,

Relator,

 

vs.

 

Sheltertech Corporation,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

 

Filed November 22, 2005

Affirmed
Klaphake, Judge

 

Department of Employment and Economic Development

File No. 569 05

 

 

Charles H. Register, 1248 Quail Run, New Richmond, WI  54017 (pro se relator)

 

Sheltertech Corporation, 2605 Seppala Boulevard, North St. Paul, MN 55109 (respondent)

 

Linda A. Holmes, Department of Employment and Economic Development, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 (for respondent Department of Employment and Economic Development)

 

            Considered and decided by Klaphake, Presiding Judge, Halbrooks, Judge, and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Relator Charles H. Register was employed as a supervisor for respondent Sheltertech Corporation from June 1, 1997, until April 2, 2004, when he was discharged after failing to call in or report to work for two days.  By writ of certiorari, relator challenges a decision by the senior unemployment review judge (SURJ) determining that he was disqualified from receiving unemployment benefits because he had been discharged for misconduct.  Because the evidence reasonably supports the findings and the law was properly applied, we affirm.

D E C I S I O N

            This court reviews findings by the SURJ under a clearly erroneous standard and will affirm if those findings are reasonably supported by the evidence.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  We review questions of law de novo.  Id.  “Whether an employee engaged in conduct that disqualifies the employee from unemployment benefits is a mixed question of fact and law.”  Id.

            An employee who is discharged for misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2003).  Misconduct is “intentional, negligent, or indifferent conduct . . . (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.”  Id., subd. 6(a) (Supp. 2003).  The employer has a “right to establish and enforce reasonable work rules relating to absenteeism.”  Jones v. Rosemount, Inc., 361 N.W.2d 118, 120 (Minn. App. 1985).  Failure to report to work is misconduct, and the employer has a right to expect that an employee will work as scheduled.  Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984).  The SURJ found that under Sheltertech’s policy, employees were to call the company’s owner as soon as they knew they would be absent, that relator was aware of this policy, and that on April 1, 2004, he did not appear for work or call the owner pursuant to company policy.  The next day, April 2, he was also a no-call/no-show.  The SURJ ruled that under these facts, relator was discharged for misconduct.

            Relator first argues that he was not fired and that he did not quit.  Whether a person quits or is fired is a question of fact.  Midland Elec., Inc. v. Johnson, 372 N.W.2d 810, 812 (Minn. App. 1985).  A quit occurs when the decision to end employment was the employee’s.  Minn. Stat. § 268.095, subd. 2(a) (Supp. 2003).  A discharge occurs “when any words or actions by an employer would lead a reasonable employee to believe that the employer will no longer allow the employee to work for the employer in any capacity.”  Minn. Stat. § 268.095, subd. 5(a) (2002).

            The SURJ did not find that relator quit; thus, relator is in agreement with the SURJ on this point and we need not discuss it further.  The SURJ found that when relator did not return to work after his April 2 no-call/no-show, the owner contacted relator’s union and told a union representative that relator had been discharged.  Relator argues that he was not discharged because he was never told he was discharged and he disputes the finding that the owner notified the union.  While it appears undisputed that the owner did not tell relator directly that he was discharged, the owner testified that he informed relator’s union of this fact.  Therefore, evidence in the record reasonably supports the SURJ’s finding. 

            Further, relator’s underlying theory appears to be that the owner just failed to call him for further work.  A discharge occurs when either the words or actions by an employer would lead the employee to believe that he is no longer working for that employer.  Id.  The SURJ rejected relator’s claim that he was merely waiting for a call with a new assignment, stating that this did not explain why he did not attempt to find out why he was not working.  The fact that the owner did not call relator with new assignments and the owner’s call to the union supports the determination that relator was discharged.

            Next, relator argues that he did call his supervisor to report that he had an appointment on April 1 and would be unable to report to work that day.  The SURJ made this finding, but also found that company policy required that employees call the owner to report when they were unable to work their scheduled shift.  Although relator was aware of this policy, he did not follow it when he called his supervisor rather than the owner.

            Relator also makes various claims about union rules, apparently to show that he could not have been fired.  As the department points out, if relator was discharged in violation of union rules, that raises a separate legal issue that is not reviewable here.

            Relator also challenges the SURJ’s finding that he had a history of walking off the job when he is upset with the company.  He asserts that the owner was confused about dates and circumstances, that he did not have the chance to rebut the written statements by the other employees to this effect, and that the owner put the other employees up to making the statements that he disputes.  Testimony by the owner and the two written employee statements support the SURJ’s finding.

            Because the SURJ’s findings are reasonably supported by the evidence, we affirm the decision that relator was discharged for employment misconduct and thus disqualified from receiving unemployment benefits.

            Affirmed.