Opinion
No. C6-98-1222.
Filed May 18, 1999.
Appeal from the Department of Economic Security, File No. 1386UC98.
Gerald Girtz, (pro se relator).
Kent E. Todd, (for respondent commissioner).
Considered and decided by Crippen, Presiding Judge, Amundson, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Relator Gerald Girtz challenges the administrative decision that, because of his misconduct, he was not entitled to reemployment insurance benefits after his dismissal by respondent Maiers Transport. We affirm the conclusion of the commissioner's representative that relator's pattern of lateness constituted misconduct.
FACTS
Relator made late deliveries in August 1997, October 1997, and January 1998, all of which the commissioner's representative found were due to "late starts." In each instance, relator was verbally warned about the timeliness of his work. Relator was discharged after he received a traffic citation for dozing and crossing the centerline, a citation that respondent employer contends was the result of getting too little sleep. In addition, relator was also involved in an avoidable traffic accident and an incident in which he made a mistaken stop.
DECISION
This court is to review the commissioner's fact-findings in the light most favorable to the decision and will not disturb them if there is evidence reasonably tending to sustain them. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn. 1989). Whether the facts support a conclusion of misconduct is a question of law, which this court reviews independently. Reddmann v. Kokesch Trucking, Inc., 412 N.W.2d 828, 830 (Minn.App. 1987).
Poor work performance is generally not considered disqualifying misconduct. Swanson v. Columbia Transit Corp., 311 Minn. 538, 539-40, 248 N.W.2d 732, 733 (1976). But an employee's deliberate work avoidance and unnecessary delays or overall poor performance evidencing a disregard for the employer's interests may constitute misconduct. Barstow v. Honeywell, Inc., 396 N.W.2d 714, 716-17 (Minn.App. 1986).
Much of the employer's grievance in this case was a problem of poor performance, but the commissioner has not erred in its application of law to the case in light of the sequence of lateness issues that were attributable to relator's untimely starts and the "last straw" of his choice to work without rest. See Flahave v. Lang Meat Packing, 343 N.W.2d 683, 686-87 (Minn.App. 1984) (recognizing the last-straw doctrine where the final of several relatively minor infractions constitutes misconduct).