Robert L. Welsch, 6942 27th Street North, Oakdale, MN 55128 (relator pro se)

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

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Harten, Judge.

The commissioner of economic security, by her representative, concluded that relator Robert Welsch's chronic tardiness and absenteeism constituted misconduct disqualifying him from receiving reemployment insurance benefits. We affirm.

Welsch applied for reemployment insurance benefits. A department claim representative determined that Welsch was not disqualified from receiving reemployment insurance benefits because Firestone discharged him for reasons other than misconduct. Firestone appealed to a reemployment insurance judge who conducted an evidentiary hearing. At the hearing, Welsch testified, as did Roy Betzold, the store manager at Firestone, and Michael Weir, another Firestone employee.

Following the hearing, the reemployment insurance judge issued findings of fact and decided that Welsch's absenteeism constituted misconduct disqualifying him from receiving reemployment insurance benefits. On review, the commissioner's representative affirmed the reemployment judge's decision that Welsch's chronic tardiness and absenteeism, following warnings, coupled with his failure to comply with the employer's call-in policy, constituted disqualifying misconduct. Welsch appeals by certiorari to this court.

[T]he intended meaning of the term 'misconduct' * * * is limited to conduct evincing such wilful or wanton disregard of an employer's interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer's interests or of the employee's duties and obligations to his employer. On the other hand mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good-faith errors in judgment or discretion are not to be deemed 'misconduct' * * *.

Tilseth v. Midwest Lumber Co., 295 Minn. 372, 374-75, 204 N.W.2d 644, 646 (1973) (omissions in original) (quoting Boynton Cab Co. v. Neubeck, 237 Wis. 249, 259, 296 N.W. 636, 640 (1941)). An employer has the burden of proving by a preponderance of the evidence that an employee committed disqualifying misconduct. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989).

Whether an employee has committed disqualifying misconduct is a mixed question of law and fact. Colburn v. Pine Portage Madden Bros., 346 N.W.2d 159, 161 (Minn. 1984). We review the commissioner's representative's findings of fact in the light most favorable to the decision; we will not overturn the findings if record evidence reasonably tends to sustain them. Ress, 448 N.W.2d at 523. The ultimate determination whether an employee committed misconduct is, however, a question of law upon which this court is "free to exercise its independent judgment." Id.

Failing to report to work without notifying one's supervisor may be considered misconduct. Moeller v. Minnesota Dep't of Transp., 281 N.W.2d 879, 882 (Minn. 1979). We have held that even a single work absence, when an employee has not actually received permission, may constitute misconduct. See Del Dee Foods, Inc. v. Miller, 390 N.W.2d 415, 418 (Minn. App. 1986) (unexcused absenteeism from work constitutes disqualifying misconduct); Fresonke v. St. Mary's Hosp., 363 N.W.2d 328, 330 (Minn. App. 1985) (although an isolated incident, employee's failure to return to work, a deliberate and direct contravention of employer's directive, demonstrated lack of concern by the employee for retaining job); Psihos v. R & M Mfg., 352 N.W.2d 849, 850 (Minn. App. 1984) (leaving work on one occasion, without permission, constituted misconduct); Little v. Larson Bus Serv., 352 N.W.2d 813, 815 (Minn. App. 1984) (employee who took week off even though request had been denied made "deliberate rational decision not to report to work").

Welsch argues that he had been granted time off from work and that the commissioner erred in denying him reemployment insurance benefits. At the evidentiary hearing, there was a conflict between Welsch's testimony that one of Firestone's supervisors had approved his vacation leave for this period and the testimony of Firestone's store manager that he had denied Welsch vacation leave. On appeal, it is not the function of this court to reweigh the evidence. We are required to defer to the commissioner's findings on credibility. Blau v. Masters Restaurant Assocs., 345 N.W.2d 791, 793 (Minn. App. 1984) (citing Nyberg v. R.N. Cardozo & Bro., 243 Minn. 361, 364, 67 N.W.2d 821, 823 (1954). Faced with this conflicting testimony, the commissioner's representative could reasonably conclude that Welsch was discharged because of excessive unexcused tardiness and absenteeism.

Affirmed.