dissenting.
Section 52-06-02(2), N.D.C.C., says that an individual who “has been discharged for misconduct in connection with his most recent employment” is disqualified for unemployment compensation. It has been left to the courts to define the nature of the misconduct that disqualifies. This court has drawn on the widely accepted definition found in Boynton Cab Co. v. Neubeck, 237 Wis. 249, 296 N.W. 636 (1941). Perske v. Job Service North Dakota, 336 N.W.2d 146 (N.D.1983):
“The Wisconsin Supreme Court noted the public policy of cushioning the effect of unemployment by a series of benefit payments and determined that this policy would be defeated if mere mistakes, errors in judgment, and unintentional carelessness were considered to be within the definition of ‘misconduct.’ ” Id. at 148.
While an employer may set any standards of conduct for continued employment that the employer chooses, the employer does not control the qualifications for unemployment compensation. “[T]he issue is not whether or not the employer had the right to discharge the employee, but rather the issue is whether or not Job Service is justified in denying benefits for the conduct in question.” Perske, supra, 336 N.W.2d at 148. While an employer may well find cause for discharge in incompetency or unsatisfactory conduct, it is estab*76lished that “ ‘mere insufficiency, 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 deemed misconduct sufficient to disqualify a claimant. Perske, supra, 336 N.W.2d at 149.
Only serious kinds of job “misconduct” disqualify. Disqualifying misconduct is limited to that which demonstrates a “wilful or wanton disregard of an employer’s interests.” Thus, “ ‘deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee' ” are sufficiently serious misconduct to disqualify. So also are “ ‘carelessness ... of such degree or recurrence as to manifest equal culpability [wilful or wanton disregard of an employer’s interest], 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.’ ” Id. at 148.
In this case, the Job Service referee found:
“The claimant worked as an assembler for the above employer for about two and a half years. His last day of work was March 14, 1985. The employer discharged the claimant after the claimant had a disagreement with a co-worker and used force and pushed this other employee. Their personnel policy provides automatic termination when physical force is used under these circumstances.
“The claimant feels he was being harassed by the other co-worker involved. A disagreement developed when this employee came through the claimant’s work area. Remarks were made, and the claimant pushed the other employee.” The referee reasoned:
“Although the claimant may have been provoked, he was in violation of the employer’s policy. Other recourse was available for the claimant rather than the use of physical force. The employer has established the claimant acted in a willful manner and in substantial disregard of their interests. Therefore, it can only be concluded the claimant was discharged and for a reason that would constitute misconduct. Accordingly, the claimant is not entitled to job insurance benefits as provided in the deputy’s determination.”
On review of an administrative decision, we have an independent obligation to determine whether a preponderance of the evidence supports the findings of fact, whether the findings sustain the conclusions of law, and whether the conclusions support the decision of the agency. § 28-32-19, N.D.C.C. We exercise restraint in that review so that we do not improperly substitute our judgment for that of the agency on factual matters. But, this court should not simply rubber stamp the action of the agency. Rather, we should satisfy ourselves that the agency has acted properly under the applicable law.
The opinion of the Chief Justice views the determination of whether particular conduct is “misconduct” as a question of fact, which “depends upon the facts and circumstances of each individual case and as such is subject to the judgment of Job Service and its expertise.” I view “misconduct” as a mixed question of fact and law, where the Job Service must make findings from the evidence to arrive at the conclusion of “misconduct.” Compare State Hospital v. North Dakota Employment Security Bureau, 239 N.W.2d 819 (N.D.1976) which held that whether an individual “voluntarily” left his employment so as to disqualify him from benefits was a question of law.
The opinion of the Chief Justice does recognize that “[a]n isolated hotheaded incident certainly will not necessarily result in disqualification of unemployment compensation benefits because of ‘misconduct’ ” but concludes that “a preponderance of the evidence supports th[e] conclusion” that “Blueshield’s use of physical force was made ‘in a wilful manner and in substantial disregard’ of his employer’s interest.” The evidence that so preponderates does not appear to be identified.
*77Virtually the entire evidence about the incident was given by the claimant himself, in his inarticulate way. It was not clarified, probably because Blueshield was not represented by counsel. Blueshield responded to the referee’s questions as follows:
“Q Okay. D — did you push him?
“A Yeah. But, well, this — this first rule here says, you know, he — he was in my — he was in my working area.
“Q Okay. And I think we — we’ve kind of covered that already. You pushed him because he was in your work area?
“A Yeah.
“Q Okay. He was coming by and he— and he — and you just went over and pushed him?
“A No. He — he came right under my working area to where I was working.
“Q Yeah? He came under your work area?
“A Yeah.
“Q Okay. Then what happened?
“A I — I pushed him out of the way, out of my working area.
“Q As he was coming under your work area, you pushed him out of the way?
“A He wasn’t walking by carrying any rejects. He just — he just came right over and I don’t think he — he should be carry these rejects, these nets over to— but at this time, he wasn’t doing that. He just came right over.
“Q Okay. He wasn’t carrying anything?
“A Nothing. No.
“Q Okay. He came under your work area?
“A Yeah.
“Q Okay. And while he’s coming under your work area, you pushed him? “A Yeah.
“Q Okay. The reason you pushed him is because he was in your work area?
“A Yeah. And he was harassing me....”
We cannot discern “force,” “fight,” or “willfulness” in this evidence. The incident was isolated, not repeated. The incident was instigated by harrassment from the other employee upon entering claimant’s work area. Not even the slightest harm to the co-employee was suggested. And, harm to the employer’s interest was not evidenced, but must be “implied” from a guess that the employer’s rule against “fighting” was, as the opinion of the Chief Justice puts it, “designed to insure safety, not only efficiency, in a plant equipped with machinery....”
The employer’s policy prohibited “fighting or physical violence.” “Fighting or physical violence” would generally be the serious kind of “misconduct” that would justify both discharge and disqualification for unemployment compensation. But, the evidence and the findings here show only an isolated mistake. They do not support a conclusion of “misconduct.” Therefore, I would hold that Blueshield is not disqualified for unemployment compensation.
I would reverse.