Opinion
No. C2-96-29.
Filed July 23, 1996.
Department of Economic Security, File No. 7108 UC 95.
George C. Gubbins, Jr., (for Relator).
Ardis Nohner-Black, (for Respondent Caddy Shack).
Kent E. Todd, (for Respondent Commissioner).
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Relator William Samardich petitions for review of the Commissioner of Economic Security's decision that he was discharged for gross misconduct and disqualified from receiving reemployment insurance benefits. We affirm.
DECISION
An individual who is discharged for gross misconduct is disqualified from receiving reemployment insurance benefits. Minn. Stat. § 268.09, subd. 1(d) (1994). "Gross misconduct" is defined as misconduct involving assault and battery or the malicious destruction of property or arson or sabotage or embezzlement or any other act, including theft, the commission of which amounts to a felony or gross misdemeanor.
Id. The employer has the burden of proving by a preponderance of the evidence that the employee engaged in gross misconduct. Manos v. First Bank Minnehaha , 357 N.W.2d 372, 375 (Minn.App. 1984).
This court reviews the Commissioner's fact findings "in the light most favorable to the decision below" and will not disturb those findings if there is evidence reasonably tending to support them. Ress v. Abbott Northwestern Hosp. , 448 N.W.2d 519, 523 (Minn. 1989). The reviewing court, however, is not bound by the Commissioner's conclusions of law, and whether events constitute misconduct is ultimately a question of law. Id.
The evidence presented at the hearing supports the Commissioner's findings that Samardich committed gross misconduct. This evidence included: (1) checks cashed by Samardich for personal expenses; (2) the corporation's president's testimony that Samardich would not allow him access to the books; (3) assessment of $5,000 in penalties and interest due to delinquent payment of taxes; and (4) debts of the business greatly exceeding the value of the inventory. See Seemann v. Little Crow Trucking , 412 N.W.2d 422, 426-27 (Minn.App. 1987) (relator's theft of employer's funds was gross misconduct, disqualifying him from receipt of benefits); Dawson v. Northland Beverages, Inc. , 347 N.W.2d 287, 288-89 (Minn.App. 1984) (claimant's unexplained payment overages raised inference of theft and were sufficient basis for finding of misconduct). We conclude the Commissioner did not err in ruling that Samardich was discharged for gross misconduct.
Samardich asserts that he cannot be disqualified from receiving benefits because he was never discharged. Samardich claims that a corporate resolution was required to effect his discharge. Nevertheless, Samardich was excluded from the business by an injunction that was secured by the corporation's president.
The declared public policy underlying the reemployment insurance statutes is to benefit "persons unemployed through no fault of their own." Minn. Stat. § 268.03 (1994). Because Samardich's acts of writing corporate checks for personal expenses directly led to the injunction that separated him from employment, Samardich is unemployed due to his own fault. Thus, we conclude the Commissioner did not err by ruling that Samardich is disqualified from receiving benefits. See Anson v. Fisher Amusement Corp. , 254 Minn. 93, 97, 93 N.W.2d 815, 818 (1958) ("`fault' [is] a basic element to be considered in interpreting and applying [the reemployment insurance statutes]").
Finally, in his brief, Samardich raised the issue of whether the reemployment insurance judge erred by not considering additional documents before rendering his decision. Because Samardich failed to make any arguments on this issue in his brief or at oral argument, we conclude that he waived his objection to this issue. See Koppinger v. City of Fairmont , 311 Minn. 186, 189 n. 2, 248 N.W.2d 708, 711 n. 2 (1976) (where appellant raises issues in his brief but fails to present any argument or analysis on those issues either in his brief or at oral argument, he has waived those issues).