This opinion will be unpublished and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

A05-2065

 

Casey M. Kieft,

Relator,

 

vs.

 

RK Builders,

Respondent,

 

Department of Employment and Economic Development,

Respondent.

 

Filed April 18, 2006

Reversed

Worke, Judge

 

Department of Employment and Economic Development

File No. 9324 05

 

Casey M. Kieft, 1813 11th Street NE, Buffalo, MN  55313 (pro se relator)

 

RK Builders, c/o Rick Kramer, 2108 155th Street NW, Monticello, MN 55362 (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 Worke, Presiding Judge; Toussaint, Chief Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Relator Casey M. Kieft challenges the decision by the unemployment law judge (ULJ) that relator was discharged for misconduct and was therefore disqualified from receiving unemployment benefits; relator argues that his two mistakes, which were correctable and were not costly, should not constitute disqualifying misconduct.  We reverse.

FACTS

            Relator was employed by respondent RK Builders from January 4, 2005, to May 6, 2005, as a lead carpenter on residential construction, earning $22 per hour.

            On April 16, 2005, relator was told to cut the top of the concrete forms used for the exterior walls of a single-family home so that they were eight feet tall.  He did so in a very rough fashion, varying above and below eight feet by one-half to three-quarters of an inch.  The employer told him it was unsatisfactory and asked him to fix it.  Relator responded that if the employer wanted to pay him to fix it, he would.  Relator explained at the hearing that he was still learning when he made the first mistake.  The employer explained that relator seemed to have a lackadaisical attitude toward the company.  He discussed with relator the need for him to be more attentive to his work and care more about what was done.  The day before the second incident, he gave relator a two-dollar-per-hour raise, thinking it might help him care more about the company.

            On May 2, 2005, the employer told relator to cut forms eight feet high but he cut them eight feet, one inch.  It took an estimated six hours to make adjustments to the house to correct for this mistake.  Relator explained that this mistake was due to human error.  The employer then discharged relator based on his poor-quality work and poor attitude.

            Relator established a benefit account, and the department initially determined that relator qualified for unemployment benefits.  The employer appealed.  After a hearing, the ULJ ruled that the employer had a right to expect relator to perform his duties with due diligence.  Before the second incident, he was counseled that his job performance was unsatisfactory.  The ULJ found that relator’s failure to ensure that the correct measurements were used for concrete forms, although not intentional, displayed clearly a serious violation of the standards of behavior the employer had the right to reasonably expect of its employees.  The ULJ ruled that relator was discharged for misconduct and disqualified from receiving unemployment benefits.

            This certiorari appeal followed.  The Department of Employment and Economic Development did not file a brief but advised this court by letter that it supported reversal on the ground that relator did not engage in misconduct.

D E C I S I O N

            On certiorari review, this court “may affirm the decision of the unemployment law judge or remand for further proceedings, or reverse or modify the decision if the substantial rights of the petitioner may have been prejudiced because the findings, inferences, conclusions, or decision are: . . . (4) affected by [] error of law; [or] (5) unsupported by substantial evidence[.]”  Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  “Whether a particular act constitutes disqualifying misconduct is a question of law, which this court reviews de novo.”  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).

            Under the current statutory scheme, the ULJ holds an evidentiary hearing and makes findings of fact and a decision.  Minn. Stat. § 268.105, subd. 1(a), (c) (Supp. 2005).  The decision is final unless the relator files a request for reconsideration.  Minn. Stat. § 268.105, subd. 2(a) (Supp. 2005).  Decisions on requests for reconsideration are subject to certiorari review by this court.  Minn. Stat. § 268.105, subd. 7(a).

            An employee who is discharged based on misconduct is disqualified from receiving benefits.  Minn. Stat. § 268.095, subd. 4(1) (2004).  The statute defines misconduct as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that displays clearly a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee or (2) that displays clearly a substantial lack of concern for the employer.”  Minn. Stat. § 268.095, subd. 6(a) (2004).  But simple unsatisfactory conduct that does not have a significant adverse impact on the employer does not constitute misconduct:

                                    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.

 

Id. (emphasis added).

            The provision that simple unsatisfactory conduct does not constitute misconduct recognizes that “employees cannot be held to a standard of perfection.”  Risk v. Eastside Beverage, 664 N.W.2d 16, 21 (Minn. App. 2003) (holding, however, that driving a company truck while intoxicated does constitute misconduct).  An employee who is discharged for poor work performance is qualified for benefits because mere inefficiency, unsatisfactory conduct, or failure to perform due to inability or incapacity is not deemed misconduct.  Ray N. Welter Heating Co. v. Larson, 394 N.W.2d 267, 268-69 (Minn. App. 1986) (interpreting earlier caselaw definition of misconduct).  Similarly, when an employee’s performance as a store manager admittedly did not meet the employer’s expectations and when she “just wasn’t up to the job,” she was discharged for inefficiency, inadvertence, simple unsatisfactory conduct, or poor performance because of inability or incapacity, not for misconduct.  Bray v. Dogs & Cats Ltd. (1997), 679 N.W.2d 182, 185 (Minn. App. 2004) (reversing determination of disqualification under earlier version of the statute).

            While the employer testified that he discharged relator for misconduct because he repeatedly made critical errors, we must address whether relator’s conduct constituted misconduct as a matter of law by displaying clearly a serious violation of the standards of behavior the employer had a right to reasonably expect or displays clearly a substantial lack of concern for the employer.  We cannot say that relator’s conduct in making two mistakes and having a poor attitude demonstrates misconduct.  Instead, his actions constitute simple unsatisfactory conduct as a matter of law.

            The decision of the ULJ that relator committed misconduct and is disqualified from receiving benefits is reversed.

            Reversed.