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  1. #11
    Join Date
    Mar 2012
    Posts
    527

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    CUIAB is not the court of appeals. It's not even court. It's the last of the easy, cheap appeals. Only easy in the sense that your submission doesn't have to conform to any established court procedures, and cheap as in no filing fees. You could write it in crayon on a grocery bag, and it would be accepted.

  2. #12

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    well I dont intend to write it on a grocery bag, in crayon. I want to do it right

    What do I do and how to win the CUIAB?

    1.) I'm at a loss as to how a judge found that my ex company lost sales dollars by having late reports, when there was no sales to report in the late sales reports.
    2.) I'm confused as to how the judge found that I willfully hurt the company (withholding information) by sending in the reports late (5-10 out of 50), even though I reported verbally to the President of the company at least once daily on my sales.

    This is like the movie Office Space.

    My goal is to get the UI extension, should I need it, as I find a job, as well as not have to pay back the funds to my ex-employer.

  3. #13
    Join Date
    Mar 2012
    Posts
    527

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    Quote Quoting keen0arene
    View Post
    1.) I'm at a loss as to how a judge found that my ex company lost sales dollars by having late reports, when there was no sales to report in the late sales reports.
    2.) I'm confused as to how the judge found that I willfully hurt the company (withholding information) by sending in the reports late (5-10 out of 50), even though I reported verbally to the President of the company at least once daily on my sales..
    That's what you write but in a more declarative way.

    There was no testimony that . . .

    There was no testimony that . . .

    You look at the findings of fact in your decision and you think back to what was said and presented at the hearing. You look at the six elements of a rules violation and talk to each one of the six that is missing.

    You might even have time to get the transcripts so you can hear the exact words that were used and make reference to them in your write up as to why the decision is wrong.

    Thing is, you're kind of on your own because only you know what was at the hearing and what was said. I haven't even read the decision exactly as how it was written, but I went to the board of review three times with my own case. I wasn't questioning the findings of fact. There were written correctly, but it was the application of the law that I was questioning, and in the end I got unemployment.

    For the most part, the ALJ at the tribunal is the one that decides who is telling the truth. If your employer says one thing and you say the opposite, and the findings only contain the employer's version, that means you weren't believed on that particular issue, and you'd be wasting your time saying, "I said . . . " However, when there was no testimony regarding one of the elements, that's something you can use because the ALJs aren't supposed to assume.

    http://azcourts.gov/Portals/0/Opinio...%2012-0129.pdf here's a good decision demonstrating things to look for. There was no doubt she was late a lot. However, the employer didn't do anything about it. So there was a condonation aspect. Then after they did start cracking down on her, they jumped ahead in the progressive discipline policy where she was fired after her second tardy. Then there was that it was such a short amount of time of being late, that the employer never testified concretely as to just what her tardiness caused in disruption.

    These are the things you are trying to do, and bring to the attention of the board of review.

    Quote Quoting keen0arene
    View Post
    My goal is to get the UI extension, should I need it, as I find a job, as well as not have to pay back the funds to my ex-employer.
    There are no more extensions at this time, and it's sure looking like they aren't coming back. The only thing you can try to do is keep the 26 weeks of benefits that you were awarded.

  4. #14

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    I did speak with a paralegal friend of my mother's. She took a look at the decision, and she advised me to get a lawyer. The ALJ/CUIAB process may be "informal" and as simple to appeal to by writing on a paper bag with crayon, as you said, but to overturn the decision is quite tricky.

    Apparently there are multiple instances of "willful misconduct". The ALJ applied section 1256 and 2856 of the labor code:
    --------
    1256. An individual is disqualified for unemployment compensation
    benefits if the director finds that he or she left his or her most
    recent work voluntarily without good cause or that he or she has been
    discharged for misconduct connected with his or her most recent
    work.
    An individual is presumed to have been discharged for reasons
    other than misconduct in connection with his or her work and not to
    have voluntarily left his or her work without good cause unless his
    or her employer has given written notice to the contrary to the
    department as provided in Section 1327, setting forth facts
    sufficient to overcome the presumption. The presumption provided by
    this section is rebuttable.
    An individual whose employment is terminated under the compulsory
    retirement provisions of a collective bargaining agreement to which
    the employer is a party, shall not be deemed to have left his or her
    work without good cause.
    An individual may be deemed to have left his or her most recent
    work with good cause if he or she leaves employment to accompany his
    or her spouse or domestic partner to a place or to join him or her at
    a place from which it is impractical to commute to the employment.
    For purposes of this section "spouse" includes a person to whom
    marriage is imminent, and "domestic partner" includes a person to
    whom a domestic partnership, as described in Section 297 of the
    Family Code, is imminent.
    An individual may be deemed to have left his or her most recent
    work with good cause if he or she leaves employment to protect his or
    her family, or himself or herself, from domestic violence abuse.
    An individual shall be deemed to have left his or her most recent
    work with good cause if he or she elects to be laid off in place of
    an employee with less seniority pursuant to a provision in a
    collective bargaining agreement that provides that an employee with
    more seniority may elect to be laid off in place of an employee with
    less seniority when the employer has decided to lay off employees.
    ------
    -----
    2856
    An employee shall substantially comply with all the directions of his employer concerning the service on which he is engaged, except where such obedience is impossible or unlawful, or would impose new and unreasonable burdens upon the employee.
    ---

    Sending in the reports on time was not impossible, nor unlawful, nor unreasonable (given perfect circumstances), nor new. Even though we are talking about 8% of 117 reports.

    She also cited PB-190

    This is a perfect law to terminate everyone by in the state of California, as one mistake is all that is needed to violate this, and avoid paying UI money.

    The paralegal said that I would have to attack the judge's decision, and show that she made an error in her logic, or misworded some part of the decision.

    what do you suggest?

  5. #15
    Join Date
    Mar 2012
    Posts
    527

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    I already discussed with you the "materiality" aspect.

    Also, you're paraphrasing to make things sound like you don't stand a chance.

    From the findings of fact:

    Although the claimant denied that he had been warned by the assistant foreman on August 14, 1959 that his continued refusal would be considered insubordination and subject him to discharge, the assistant foreman testified that he had warned the claimant; a certified statement to this effect by the leadman was presented at the hearing; and the referee found that the claimant had been so informed.

    Then this from the decision:

    He deliberately refused to obey this instruction on five separate occasions, persisting in his refusal even after he was warned of the serious consequences which would result.

    So the question is: From your hearing, was there evidence that you knew you would be fired for not submitting reports with zeros on them? If not, that is another basis for your appeal.

  6. #16

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    Quote Quoting chyvan
    View Post
    So the question is: From your hearing, was there evidence that you knew you would be fired for not submitting reports with zeros on them? If not, that is another basis for your appeal.
    Yes. There was a written reprimand for late reports (in general). (The late reports were the zero sales ones).

    In the sections the ALJ cited (1256 and 2856) there is no "materiality" requirement.

  7. #17
    Join Date
    Mar 2012
    Posts
    527

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    You can't go by the wording in the LAW, you have to look to the case law to see how it's been interpreted.

    http://www.edd.ca.gov/uibdg/Misconduct_MC_485.htm

    From here, that I posted in the other thread are the 6 criteria that are being looked for. There is a "materiality" requirement.

    Also, just because you were warned doesn't mean that you knew that you'd get fired for zero reports. You may very well have walked away from that meeting thinking that you just couldn't be late with the ones that weren't zero.

    I wasn't at your hearing or participated in your warning meeting, and neither did an attorney that you want to hire. You are in the best position to shape things into a winning a appeal.

    I've written three board of review appeals for myself and got relief twice. I've coached 2 others and proofed their work, and one won, and the other also got relief. I'm not just guessing here, I've lived it.

    Why don't you just type in the whole decision with the findings of fact and reasoning and conclusions of law, and I'll see if there's more to work with.

    http://www.laborlawtalk.com/showthread.php?t=284862

    That's another thread. Sure she didn't meet quota, but right in the findings of fact was the key to winning at the board. She NEVER met quota.

    You need to do the same thing. Use the benefit determination guide, and use the CUIAB precendent decisions. There's good stuff in there, but you have to know how to read them.

  8. #18

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    I scanned the docs, I can post them. I'd rather present them privately, as the internet is public and Id rather my opponent not find this discussion. I can pm them to you, hopefully, pm me your email, as your box is full.

  9. #19
    Join Date
    Mar 2012
    Posts
    527

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    At this point, your opponent doesn't care. Once you've had the tribunal hearing all subsequent decisions cut heavily in favor of upholding the decision from the tribunal even if the opponent doesn't lift a finger.

    Besides that, your opponent already got a copy of the decision so there is nothing new there.

  10. #20

    Default Re: Employer Appealed on Grounds of Willful Misconduct, Won the Appeal

    I retained an attorney (for a hefty fee) to file my appeal to reverse the decision of the ALJ. The appeal is at the CUIAB. I'll try to keep this updated.

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