*1 179 injuries prior experience with The record supports [¶ that Vu Depart- 41.] findings and I would ment’s affirm. involving compensation workers’ while at A review of all facts shows Morrell. MILLER, Justice, joins [¶ Chief 42.] Vu, in light of her education and this dissent. clearly recognized should have intelligence, nature, seriousness and com- probable “the injury. character” of her Mil-

pensable

ler, work- we addressed situation where compensation repeated

ers’ claimant' had elbow, injury visits for an to doctor her 2000 SD 104 claiming now she reasonable had a WEEKS, Appellee, Robert Plaintiff and notice to failing give timely excuse v. ¶¶ 2-6, 89, employer. See 1996 SD 651 BANK, Defendant VALLEY at We that this N.W.2d 818-19. concluded Appellant. that claim- supported finding No. 21220. no reasonable not time- ant had excuse for id., ly notifying employer. 1996 SD See Court of Supreme South Dakota. ¶ 18, Further, 89, at N.W.2d 822. April on Briefs Considered 2000. Loewen, back claimant had hurt pain workplace. suffered acute while at Aug. Decided 2000. 2, ¶¶3-4, at See 1997 SD was aware of the nature of

Claimant acute injury at

the back its occurrence. We held timely

that no notice given id., upon this

er based fact. See SD

¶2, 16, 557 present N.W.2d at 768. In the

case, knowledge pain Vu’s of the at acute injury history

the time of her and her support

doctor visits she had fact that

knowledge compensable nature of injury long it. reporting

her before previously Vaughn, We noted in

[¶ ... purpose

“the of the notice requirement give employer opportunity ‘to

investigate injury while the facts ¶ 20,

accessible.’” 2000 SD Loewen, (quoting ¶ 18, 768). approxi N.W.2d at For months,

mately thirty-two had back Vu employer never advised

pain, but her

her condition. With this of time lapse filing injury

between and the

claim, I submit that has been meaningful thwarted

totally having

opportunity investigate Vu’s claim. *2 Falls, Carter, Attorneys Sioux

David 0. plaintiff appellee. and Davenport, Cheryle Gering, Wiedmeier Falls, Evans, Smith, At- Hurwitz & Sioux appellant. torneys for defendant Johnson, At- Special Assistant Drew C. Aberdeen, General, Attorney for torney Labor, Un- Department Dakota South Division. employment Insurance KONENKAMP, Justice. S. Robert applied for trust officer. He

Weeks as its benefits. On unemployment argued the bank appeal, discharged for work-related ruled that his of Labor to misconduct did not amount performance insurance stat- unemployment under affirmed, court utes. The circuit affirm.

Background Valley Bank’s Haugo, Houston CEO, in 1993 hired Weeks President to serve as senior trust officer. In the trust department, and' he would be avail- newly department, formed trust to talk able clients needing informa- secretary and a made the entire staff. tion while he was gone. In closing, he years, Haugo Over Weeks dis- “Sorry wrote: if prob- this has caused a *3 prospect department cussed the that the lem. I was not aware of the vacation might independent evolve into an policy against taking the Wednesday be- company, that never materialized. fore Thanksgiving, but in the I future will department The showed no the accordingly.” schedule Haugo wrote in Instead, years five Weeks worked there. response: $400,000. exceeding it accumulated losses Vacation just are that re- [¶ 3.] Weeks was allowed three weeks a quests not notification employees of year In paid vacation. late he when going to take vacation/un- request submitted off and “vacation/time leave so that the can form, approval” requesting vacation for the schedulé the running of the company. 26, 28, dates November December You have days’ five more vacation the 24, 26, 29, 30, 31, 2, 5, 6, January and and previously I [sic] indicated so schedule form, 7. This employees, used all bank them with payroll] Gert [head and top: states at the “To assist in scheduling take the unpaid. rest vacations/time-off, please ... return at I am concerned in getting the Trust days prior least 30 to vacation/time-off department going building it strong- Haugo responded start date.” to the re- er hopefully profitable. more That quest in a letter to Weeks dated Novem- means that we need someone of the [sic] ber 17: job not unpaid on vacation or leave. you Our records show have 30 hours a one-man department we need that one left for you vacation time and I noticed person very aggressive and devel- had unpaid also taken leave. Valley op business. when I question That’s Bank discourages around amount of time off and timing of this holidays and especially before and leave. — holiday after the like Thanksgiving so ok, Friday is but Wednesday is not and Weeks took the vacation. that gives you vacation hours left for .23, 1998, Haugo [¶ 5.] On March distrib- year. the rest of the a one-page uted memo to all staff explain- I also would believe that the trust ing “Vacation’requests that in by be should you year needs around for every year 3-1-98 to Houston.” In a end business of its customers and to “rules,” paragraph titled the memo stated questions answer that Laurie is not “Days in part: Holidays off before after& equipped to answer. upon are not looked favorably, espe- responded [¶ 4.] Weeks later in cially Tuesday Monday after a Holi- stating a letter that he plans had made his day.” family

for holiday get-togethers nearly six months earlier. He had purchased tickets submitted another that were neither refundable nor ex- May off on 1998. He vacation/time changeable. He explained May that to be with selected and 26. The date 18— family on the East Thanksgiving, Day, Coast on Memorial was circled on form, Wednesday necessary, travel on “pd Holiday” with the words trip planned Haugo Christmas to written beside it. denied the re- engagement quest, coincide with his son’s an- writing the word “No!” across the nouncement. Haugo Weeks told that he form and it. signing responded arrange would by phone be accessible the denial with a letter to dated case a question should come form, I in the I believed for the of Labor. De-

When turned The benefits, partment grant affirmed the following all procedures. I was appealed to the circuit in a memo to Following your directions court. circuit court affirmed the De- I scheduling, regarding Laurie Valley Bank partment’s ap- decision. now two weeks requested peals with two issues: Court I understand that these are ahead. also Was Weeks work-related I pay, which will without misconduct and therefore entitled to procedure before. has been unemployment compensation receive bene- Houston, purposely I scheduled this (2) Valley experience-rat- fits? Bank’s Is vacation, anniversary cruise for M.J. *4 ing charge for subject account benefits months, during non myself, summer 1 paid to Weeks? would be thinking there fewer of Review Standard during this non time. peak for vacation for, fully paid is The cruise has been [¶ We review 8.] administrative not refundable. as the decisions in the same manner circuit findings may court.

Sorry way if this has caused a Factual over only problem. “clearly turned if are found to be erroneous” has after all been in a letter Haugo responded dated 1-26-36; considered. Abild v. My turning for down re- your reason ¶ Inc., 50, 2000, 6, Gateway 1996 SD quest due to the condition the Trust findings N.W.2d will 558. The not be said, As has been “You Department! definite disturbed unless we are left with a - child,” un- don’t leave a sick firm a mistake has conviction been paid. someone premises We need on Co., Inc., Sopko made. R v. C & Transfer building business. We need to kick this ¶8, 7, 225, 229. 1998 SD Con - Ind. department, (hopefully Company law, questions clusions of as well as mixed someday), the rear. require application of fact and law that trip, is 30 policy Our before standard, legal fully reviewable. you buy the tickets make before & /or Co., v. Schuck Morrell & John N.W.2d is just logical. the reservations. This (S.D.1995) (citations omitted). Weeks nevertheless took the time off. He employee’s Whether an actions constitute on 27. returned to work question misconduct is a of law. Rasmus Labor, sen v. Dept. South Dakota 17, 1998, July [¶ On Weeks was ter- (S.D.1993). position. minated from As of that time, used his three of vaca- he had weeks Analysis and Decision tion taken ten unpaid and had additional discharged for [¶ 9.] Persons work-con- filed a claim for unemploy- off. He nected disqualified misconduct are benefits. Bank re- insurance receiving unemployment benefits. SDCL ground on the the dismissal sisted defined in 61-6-14.2 Misconduct is was for work-related 61-6-14.1: granted appeal- benefits. The bank ed, held As hearing chapter, and a before an ALJ used in this misconduct is: provides experience-rating subject 1. Bank’s account is SDCL 61-5-29 charge. “charged experience-rating account is to be chargeable....” all Benefits with benefits however, payable, if are not part: provides “An SDCL 61-6-14 unem- suspended discharged or discharged miscon- ployed ”[w]as individual who was or sus- employment, with the ...” employment, duct connected As pended recent from his most thirty in Issue 1 that Weeks was not employment being conclude such at least calen- misconduct, and none of dar for misconduct connect- in duration exceptions apply, Valley ed with shall be denied other in the statute his work benefits.... orders, obey rules or in- was that he was not making money for the structions, department. or failure to The record reveals no for which an individual was contemporaneous letter or other document employed; setting forth- the reason for termination. Weeks, According to the bank did Substantial with, come its current reason until it er’s interests or of the appealed. duties and er; or Department’s It is the re Mllful Conduct sponsibility judge the credibility of wit

wanton nesses and choose between conflicting ver interests as is found in deliberate Constr., sions. Wagaman v. Sioux Falls violations or ¶ 242-13 has (citing Hinky Petersen v. Dinky, 515 employee; (S.D.1994)). Here, testimony heard and reviewed (4) Carelessness or negligence presented by of such evidence both It sides. con

degree or recurrence as to manifest cluded that the bank discharged Weeks equal culpability wrongful or intent. poor performance “for his in operating the However, department trust inefficiency, by mere as demonstrated his unsatisfac- conduct, failure to make a tory perform nearly as the after [five] years inability incapacity, good department.” result of or a as head of the It discretion, Weeks, faith in chose to judgment accept error or or believe rather than by religious major conduct mandated a belief the claim a reason for that bank’s which reasonably belief cannot be ac- firing Weeks was disobedience of vaca rules, commodated is not mis- tion emphasizing that there was a conduct. gap day two-month between Weeks’ last away and his termination. Valley argues that in engaged meaning misconduct within the of this stat- From our examination of the rec- [¶ 13.] ute; thus, he unemploy- should not receive Depart- ord it is difficult to see how the ment benefits. ment finding was erroneous. The that not terminated for disre- The record a reveals sub garding policy, stantial fact dispute of on reason for failing instead for to make his employer, Weeks’ termination. As the profitable, supported is the evidence of bank must establish aby preponderance of past Haugo communications between the evidence that was for may explained by Weeks. Behavior Abild, related misconduct. work SD ¶ dealing: sequence previous course of “a 559-60. conduct between the to a parties particular Bank contends that the termination was fairly which regarded transaction poor performance related to excessive under- establishing common basis of time off: company policy Weeks violated standing interpreting expressions their and a direct order to not take time off Farnsworth, E. Allan and other conduct.” May in from work 1998. These asserted (2nd 1990) 7.13, § Contracts at 528 Ed. include violations Weeks’ failure to sub (citation omitted). mit a request thirty days before the re off; quested time time off before concerning days The policy bank’s Monday holiday; and after a tak Haugo strictly off was not enforced. ing time off without permission. deny paid express would time off or dis- pleasure days requested, yet over the he points [¶ 11.] Weeks out that he was not away until nearly fired two months after the allowéd Weeks to take the time effect, unpaid. occurrence ac- only given and the reason the office to show an intentional and sub- past, sign, in the or practice in Weeks’ quiesced in- stantial why not shown the bank has terest or of the to be viewed different- episode ought the oth- should, employer. On certainly waiting ly.3 If it hand, inefficiency, mere unsatisfacto- a termination no- er respond with months to conduct, in ry good performance failure doubt. To the De- considerable tice leaves inability incapacity, vaca- as a result of delay signified partment, the in ordinary negligence reason for dismissal. inadvertancies was not the tion issue instances, good faith errors in rec- isolated clear evidence We can find no or discretion are not to be finding. judgment ord to contradict meaning ‘misconduct’within the deemed real reason for dis If the [¶ of the statute. a prof failure obtain charge was Weeks’ (S.D.1986) (alteration this will not department, it for the Yaroch, 333 original) (quoting In re of misconduct meet the definition (S.D.1983)). Depart- statutes Unemployment 61-6-14.1. prove ruled that the bank did not liberally in favor of claimants. construed ¶ wrongdoing willful or deliberate Abild, 547 N.W.2d at 560 It also omitted). disregard of the bank’s interests. (citations Whether Weeks did not decide; concluded that Weeks’ deficiencies us to properly discharged is not for constitute carelessness rather, simply examine the conduct mis- amounting to willful intentional statutory definition. see if it fits within the Instead, charac- 306, conduct. White, (citing Id. In re substandard, “but not (S.D.1983)). terized his work as *6 profit make a so,” exceptionally negligence and his as does not amount for the trust “ordinary negligence.” disregard employ of the to “[substantial employee’s of the er’s interests or Conceding Department’s find [¶ 17.] employer.” to his obligations fact, ings being showing of there no 61-6-14.1(2). erroneous, were we conclude bank’s claim that Despite the [¶ 16.] that Weeks did not refuse to undertake correlate with the trust Weeks’ absences Val assigned task. See Kienast v. Sioux thrive, no failure to department’s (S.D.1985). In ley 371 N.W.2d 337 Co-op., in effect can be found of cause and Kienast, ex though even there was no in explained we Raml v. Jen record. As employee to press, verbal refusal kins Methodist Home: task, perform the perform the failure to worker, job training a fellow meaning assigned of of [within

[Misconduct amounted to a refusal and was “a substan compensation stat- unemployment obligations disregard such tial of her duties and evincing is limited to conduct utes] a disre employer plus of an em- to the substantial willful or wanton employer’s interests.” Id. at gard in deliberate of the ployer’s interest as is found of misconduct was held 340. The violations or deny sufficient to the claimant unem employer has the behavior which the facts in benefits. Id. at 341. The employees, ployment right expect of in Yar- distinguishable also from those of such de- carelessness or och, was terminated employee where the equal or recurrence as to manifest gree accomplish, or not long de- too culpability, wrongful intent evil rently exactly three of vacation you have the vacation incident in addition to example dealing a request days. this course of To your another of is for 6 while December letter wrote to Weeks on oversight you will have 3 correct your just "I have pay.” with 3 off without January December 22 to 3. Cur- However, all, inefficiency, mere unsatis- such as assigned tasks completing at conduct, factory perform changing lightbulbs. snow and shoveling inability incapacity, the result admit at 449. judgment in or discre- good faith error given approxi “supervisor ted that tion, by religious mandated or conduct ... full force commands ‘harsh mately six reasonably belief which belief cannot Id. at 450 up the work.’ pick ... employer is not accommodated (omissions in original). added.) (Emphasis shown that Weeks It has not been [¶ 18.] “miscon- This has further defined Court to obtain a intentionally failed unemployment meaning duct” within the unemploy- As our department. the trust as, compensation interpreted liberally laws are to be willful or wanton conduct claimant, agree with the favor interests as did not that Weeks’ actions is found in deliberate violations or disre- of misconduct as defined fall to the level gard of standards the statute. has the of his Affirmed. [¶ 19.] negli- employee, or carelessness recurrence as to gence degree of such Justice, MILLER, Chief [¶ 20.] in- equal culpability, wrongful manifest GILBERTSON, Justices, SABERS an inten- design, tent or evil or to show concur. disregard of the tional and substantial interests or of the AMUNDSON, Justice, dissents. ee’s duties er. AMUNDSON, (dissenting). Justice Yaroch, Matter I dissent. respectfully (S.D.1983) Boynton Cab Co. v. (quoting 61-6-14, “an unem- [¶ 23.] Under Neubeck, 237 Wis. 296 N.W. discharged ... individual who was

ployed (1941)). with his work for misconduct connected principle A common exists [¶24.] bene- [unemployment] shall be denied *7 right expect an employer has the “[a]n is defined under fits .... Misconduct or to follow reasonable orders employee as, 61-6-14.1 Di Jorgensen v. Banta instructions.” See (1) orders, rules or in- obey (Minn. Inc., *3 Mktg., rect WL structions, or failure to Serv., Dep’t v. Iowa Job App.); Myers duties for which an individual (Iowa Ct.App.1985); employed; Serv., 352 N.W.2d v. Larson Bus Little disregard of the Substantial (citation omit (Minn.Ct.App.1984) er’s interests or ted). Further, employer’s request “if the an un impose is reasonable and does er; or an employee, burden on reasonable comply constitutes employee’s refusal such willful or Conduct Jorgensen, 1996 WL 91672 misconduct.” wanton commits insubor employee at *3. When an as is found deliberate interests occa by committing, on numerous dination violations sions, obey the em refusals to deliberate employer has orders, conduct constitutes ployer’s employee; of his id. misconduct. See case, re- present In the of such Carelessness separate oc- vacation time on quested manifest degree or recurrence as to dis- were met with casions. Both culpability wrongful intent. equal approval by employer. Despite duct when an employee actually Weeks’ has not absent”). permission Such employers’ specific denial of Weeks’ re by conduct Weeks evinces a willful and time, quested took the va wanton of his inter anyway. undisputed cation time It is ests favor of his own interests and is requested vacation time Weeks’ was de employer behavior which an should not nied and Weeks took the have to accept. anyway. This is a “failure orders, obey rules or instructions” of an I would hold the facts employer by an and clearly con disqualification case warrant a of unem- ployment compensation. stitutes misconduct under 61-6- 14.1(1). Weeks’ failure to abide

employer’s denial of the order,

has to constitute obey

i.e., See, Foods, e.g., Del Dee (Minn. Miller,

Inc. v.

Ct.App.1986) (noting that even “a single may

absence from work constitute miscon