Daniel S. Ojala, Relator, vs. Gull Lake Subway, Inc., Respondent, Department of Employment and Economic Development, Respondent.

Daniel S. Ojala, Relator, vs. Gull Lake Subway, Inc., Respondent, Department of Employment and Economic Development, Respondent. A05-1815, Court of Appeals Unpublished, July 25, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1815

 

Daniel S. Ojala,
Relator,
 
vs.
 
Gull Lake Subway, Inc.,
Respondent,
 
Department of Employment and Economic Development,
Respondent.

 

Filed July 25, 2006

Affirmed

Wright, Judge

 

Department of Employment and Economic Development

File No. 954405

 

 

Daniel S. Ojala, 4582 Michelle Circle, Baxter, MN  56425 (pro se relator)

 

Gull Lake Subway, Inc., P.O. Box 58, Nisswa, MN  56468 (respondent)

 

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

 

 

            Considered and decided by Shumaker, Presiding Judge; Wright, Judge; and Ross, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Relator challenges the decision by the unemployment law judge that relator is disqualified from receiving unemployment benefits because he was discharged for employment misconduct.  We affirm.

FACTS

 

Relator Daniel Ojala worked for Gull Lake Subway, Inc., managing the Nisswa Subway from March 2004 until May 24, 2005.  Ojala gave his 45-day notice of resignation on May 17, 2005, but the following week, Gull Lake Subway hired a new manager and informed Ojala that his services were no longer needed.

Ojala applied for unemployment benefits, and a Department of Employment and Economic Development adjudicator determined that Ojala had not committed employment misconduct.  And because Ojala was replaced more than 30 days before the date his resignation would become effective, the adjudicator determined that Ojala was discharged and, therefore, not disqualified from receiving unemployment benefits.  See Minn. Stat. § 268.095, subd. 5(b) (2004) (providing that if discharge occurs within 30 days before intended quit date, separation from employment is a quit). 

Gull Lake Subway appealed.  After a hearing, an unemployment law judge (ULJ) determined that Ojala was discharged for employment misconduct and disqualified from receiving benefits.  Ojala requested reconsideration under Minn. Stat. § 268.105, subd. 2 (Supp. 2005), and the ULJ issued an order affirming the earlier decision.  This certiorari appeal followed.

D E C I S I O N

We may affirm the ULJ's decision, remand it for further proceedings, or reverse or modify it if the relator's substantial rights

may have been prejudiced because the findings, inferences, conclusion or decision are:

(1)    in violation of constitutional provisions;

(2)    in excess of the statutory authority or jurisdiction of the department;

(3)    made upon unlawful procedure;

(4)    affected by other error of law;

(5)    unsupported by substantial evidence in view of the entire record as submitted; or

(6)    arbitrary or capricious.

 

Minn. Stat. § 268.105, subd. 7(d) (Supp. 2005).  We view the factual findings in the light most favorable to the decision and will not disturb the findings as long as they are reasonably supported by evidence in the record.  Lolling v. Midwest Patrol, 545 N.W.2d 372, 377 (Minn. 1996).  Credibility determinations are the province of the ULJ and are accorded deference on appeal.  Munro Holding, LLC v. Cook, 695 N.W.2d 379, 384 (Minn. App. 2005).

Whether an employee is discharged for employment misconduct is a mixed question of fact and law.  Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn. 2002).  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).  But whether an employee's actions constitute employment misconduct is a question of law, which we review de novo.  Ress v. Abbott Nw. Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). 

An employee who is discharged for employment misconduct is disqualified from receiving unemployment benefits.  Minn. Stat. § 268.095, subd. 4(1) (Supp. 2005).  Employment misconduct is "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 demonstrates a substantial lack of concern for the employment."  Minn. Stat. § 268.095, subd. 6(a) (2004).  But "[i]nefficiency, inadvertence, simple unsatisfactory conduct, a single incident that does not have a significant adverse impact on the employer, [or] conduct an average reasonable employee would have engaged in under the circumstances" is not employment misconduct.  Id.  

"An employer has a right to expect that its employees will abide by reasonable instructions and directions."  Vargas v. Nw. Area Found., 673 N.W.2d 200, 206 (Minn. App. 2004), review denied (Minn. Mar. 30, 2004).  When an employer makes a reasonable request that does not impose an unreasonable burden on the employee, an employee's refusal to comply with the request constitutes employment misconduct.  Id.; Soussi v. Blue & White Serv. Corp., 498 N.W.2d 316, 318 (Minn. App. 1993); Sandstrom v. Douglas Mach. Corp., 372 N.W.2d 89, 91 (Minn. App. 1985). 

A knowing violation of an employer's directives, policies, or procedures also constitutes employment misconduct because it demonstrates a substantial lack of concern for the employer's interests.  Schmidgall, 644 N.W.2d at 804; see also Gilkeson v. Indus. Parts & Serv., Inc., 383 N.W.2d 448, 452 (Minn. App. 1986) (finding misconduct when employee engaged in pattern of failing to follow policies and procedures and ignoring directions and requests). 

Although Ojala contends that Gull Lake Subway terminated his employment only because Ojala had given notice of his intention to resign, the testimony and documents provide ample support for the ULJ's findings that Ojala was discharged because Gull Lake Subway was concerned about whether Ojala would work out his 45-day notice period and because Gull Lake Subway was dissatisfied with Ojala's job performance.  Specifically, Gull Lake Subway requested that Ojala call the store at times when business typically was slow to determine if staffing levels could be reduced to save labor costs, which were not meeting Gull Lake Subway's business standards.  The ULJ found that Ojala failed to comply with this request.

William Mathis, the president of Gull Lake Subway, Inc., testified that one reason Ojala was terminated was because Ojala told Michelle Mathis that he might not fulfill his 45-day notice period.  According to documents in the record, Ojala told Michelle Mathis on May 17 that "if a job comes along that he can not pass up, he will give two weeks notice."  William Mathis testified that they could not run the business "without knowing whether [Ojala] was going to be there one day or not."  William Mathis also testified that another reason Ojala was terminated was his failure to control labor costs.  Ojala's employment contract required him to keep labor costs under 23 percent, and documents in the record demonstrate that, for several months, Ojala's labor costs ranged from 26 percent to 32 percent.  William Mathis testified that, on May 5, he discussed the profit-and-loss statements with Ojala and directed him to call the store when he was not present and determine the level of business activity.  If sales were low, Ojala was instructed to reduce the staffing level to save labor costs.  William Mathis testified that May 13, 15, and 16 were a few examples of dates when Ojala failed to call the store. 

Ojala admitted stating that, if offered a job, he may "give a two-week notice from the time [he] was offered the other position."  Ojala also admitted that he was instructed "to call in and see if business was slow to cut staff."  When the ULJ asked Ojala if he complied with that instruction, Ojala testified, "I may have called once or twice, but not every time I felt it could be slow, I guess."  On this record, there is ample support for the ULJ's factual determinations.

Furthermore, Gull Lake Subway's request did not place an undue burden on Ojala and was reasonable, particularly in light of Ojala's history of failing to meet his labor-cost goal.  The ULJ, therefore, did not err in concluding that Ojala's admitted refusal to comply with Gull Lake Subway's request to call the store demonstrated a substantial lack of concern for the employment and constituted employment misconduct.  Because Ojala was discharged for employment misconduct, he was disqualified from receiving unemployment benefits. 

Finally, Ojala argues that the ULJ improperly based his decision on hearsay.  But a ULJ "may receive any evidence which possesses probative value, including hearsay."  Minn. R. 3310.2922 (2005); see Vang v. A-1 Maint. Serv., 376 N.W.2d 479, 482 (Minn. App. 1985) (stating that hearsay may be sufficient to support ULJ's decision).  Based on the record before us, we conclude that it was not improper for the ULJ to base his decision, in part, on hearsay evidence.

Affirmed.