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  1. #1
    Join Date
    Sep 2013
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    5

    Default Terminated for Misconduct Without Written Warning

    My question involves unemployment benefits for the state of: Arizona

    I was terminated from my job for misconduct. I received no written warnings or any indication I would be fired for poor performance. My employer claims I didn't follow instructions or do my job duties properly. He told me to correct some of my work, which I did. Again, I received no written warnings about this. I was granted UI benefits because my employer did not submit any response within the specified timeframe. However, now my employer is protesting my UI benefits, stating "willful or negligent misconduct" and I have an upcoming hearing. What is the deciding factor a judge looks at when it comes to misconduct?

  2. #2
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
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    35,894

    Default Re: Terminated for Misconduct Without Written Warning

    Is there a binding agreement where discipline is spelled out clearly?

    If not, they really don't need a reason to term your employment without warning.

    If it's possible, could you shed some light onto the actual reason your employer is fighting? Poor performance doesn't, as a rule, preclude you from getting UI. Insubordination on the other hand certainly could.

  3. #3
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Terminated for Misconduct Without Written Warning

    If possible, you want to short circuit the hearing. The deadlines are clearly spelled out. From your first post, you say the employer didn't reply. You bring that up at your hearing. On the bottom of your "determination of deputy," it should say, "This determination becomes final unless a written appeal is filed by telephone, by mail, by fax or in person within 15 calendar days after the mailing date shown at the top of this determination. If the last day of the appeal period falls on a Saturday, Sunday, or holiday, the appeal period will be extended to the next working day."

    You need to look at everything and compute if the appeal was timely filed. If not, be sure to object at your hearing on this basis. That way if a finding of untimely filing without good cause (you need a damn good reason to be good cause) is found, then the hearing will end almost immediately, and you'll continue to receive benefits right or wrong on a technicality, and spare yourself from hearing how bad a worker you were. It also gives you an additional reason to appeal up the chain of command if you have a hard nose ALJ handling your case.

  4. #4
    Join Date
    Sep 2013
    Posts
    5

    Default Re: Terminated for Misconduct Without Written Warning

    We had a 1-year employment agreement with no outline at all for discipline actions. I was terminated before the 1 year was up. This probably has nothing to do with me receiving benefits, and is a civil matter if I want to sue my employer for terminating me before the contract period was up.

    I don't know for sure why my employer is fighting, but believe he doesn't want to pay the extra taxes and charges to his employer account. I'm not sure how all that works.

    After looking over the packet sent to me by DES, in fact, my employer did send in the employer's response paperwork on time. However I was still granted benefits because my employer has "not given specific facts, final incident or prior warnings." And now my employer is appealing the original decision. He states he gave me verbal reprimands, but none of them indicated I could be terminated.

  5. #5
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Terminated for Misconduct Without Written Warning

    Thanks for adding the extra information. In a discharge, the employer carries the burden of proving what was done. As long as you don't admit to anything, it appears that their is NO proof of anything, and even if there was, poor performance is generally not misconduct in the eyes of the unemployment system.

    An employer can't accuse you of misconduct. That is something the state determines. All the employer can do is try to prove that you committed some act, and that act has to be misconduct within the meaning of the unemployment statutes and regulations.

  6. #6

    Default Re: Terminated for Misconduct Without Written Warning

    Can they add additional information now? They had the opportunity to present facts before and choose not to.

    I would think that the evidence that was heard upon the first adjudication of the claim is the only evidence that should be considered in an appeal. The newly plead facts or any new statements should not be allowed part of the record for consideration upon the appeal.

    The OP should look into what evidence can be considered in an appeal. Is it a de novo review? I doubt it. But the regulations and statutes should make this clear.

    Clearly, if the employer's initial response was just a bunch of legal conclusions the initial decision is valid.

    Keep the new evidence out through a motion to strike or objection and you'll likely win with ease.

  7. #7
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Terminated for Misconduct Without Written Warning

    A tribunal appeal is de novo. Anything and everything that was presented to the deputy is of limited value simply because the deputies make things up, misinterpret things, or take things out of context. However, there can be things from the deputy interview that might be useable to impeach testimony at a hearing.

    An example would be if the employer wrote on the "Notice to Employer" that the claimant was the worst performer every. When the employer then discovers that won't get a claimant denied benefits, at a hearing the employer might shift gears and say, "the claimant used to do a wonder job, and then started to slack off, and that has to be delibrate because the employee used to do such a great job." That is where the statements to the deputy could be of value to a claimant at a hearing because then the claimant can say, "Which is it? I never did a good job, or I used to do a good job." At that point, the employer's credibility can be compromised helping the claimant.

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