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  1. #11
    Join Date
    May 2018
    Location
    Lexington, KY
    Posts
    7

    Default Re: Unempolyment Denied for Wilful Misconduct

    The last item seems a good idea. #2 is a good idea too.
    Thanks I have listed these things on my notes.
    A large portion of these errors were common punctuation after using spellcheck certain medical items do not autocorrect.

    This may yet turn out in a positive way after all
    Thank you for the hope I have been looking for.

    We all have made mistakes such as this. Before the start of this year I had never been written up.

  2. #12
    Join Date
    Jan 2015
    Posts
    1,142

    Default Re: Unempolyment Denied for Wilful Misconduct

    First of all, completely forget (1) how poor you are, how bad you need to be approved for unemployment insurance and (2) your depression and/or any other physical or mental conditions that might've affected how you did your work. In your hearing, DO NOT bring up either of these two issues. This is for various reasons, including that unemployment is NOT based on how badly you need it, poor and need the money does NOT increase your chances of approval, and if you mention having trouble doing your work due to depression or any physical condition, this may totally disqualify you for benefits even if you were approved. In order to get the benefits weekly you have to certify that you are able, available and actively seeking other equivalent work. So they don't accept "I have a disability" as a good reason why you should be approved.

    You do have a few things that are very positive about what's going on for the hearing. One is that it is very tough to prove "poor performance" and document it to the point that it classifies as actual misconduct.

    Several points you can make and need to make: You worked there for nine and a half years. For them to keep you that long, you must have, to some extent, have been doing a good job, else they would've gotten rid of you before now. Did you ever have good performance reviews, salary increases, words of praise from your supervisors? If so, mention that you've had these. If any were recent, (within the last few months, this year) be sure to bring them up.

    As you said, they fired you and said it was for several different reasons for which you'd been written up. This is called a "kitchen sink" termination, where they throw in everything but the kitchen sink, thinking that the sheer number of various things you were not doing to suit them will make a stronger case for justified termination. However, this isn't the case. The best thing the employer could do is pick ONE issue, one performance thing that they were unhappy about, for example lateness (a very easily documented one) or "violation of company policy." With warnings, and showing that you were fully aware you were doing something they did not like, that you had been warned about THIS PARTICULAR ISSUE, and the understanding that if you did it again, you'd be terminated, yet you still chose voluntarily to do it again, making it fall into something you had a choice to do and be terminated.

    What was the LAST thing that happened, the actual thing you did or they say you did that precipitated their firing of you? This is really the only issue. This is the issue they'd need to show the previous warnings about. This is the only one that you need to talk about. Anything else, you need to cover with THIS phrase: "I always did my job to the best of my abilities. I tried to improve my performance. When they talked to me or gave me a warning, I tried my best to do what they asked me to do. I did NOT want to lose my job. I always was there and doing my best."

    See, with performance it is tough to show that people were performing poorly voluntarily (unless they were doing something very blatantly, like deliberately slowing their pace to get in more hours, or deliberately tearing up the process for spite, or lying under their desk taking a nap instead of working.

    As long as you were showing up for the job, and trying what you allege to be your best, then it is sort of beyond your control that you did not have good educational skills (punctuation) or that you couldn't move fast enough or you didn't have the smarts to do error free work. You have to keep beating on the "I always did my job to the very best of my ability. I tried to do what they asked of me."

    You may also throw in that you had heard recently on the job that they were beginning to downsize. You feel that they may have been looking for reasons to get rid of you, though you were doing your job to the best of your abilities, and that you have heard that the job is now part time without benefits.

    But remember the "willful and wanton disregard for the employer's interests." If you showed up for work and worked there nine and a half years, and they only decided to get rid of you after all those years, for a whole lot of scattered reasons, that does not, in your presentation of the facts, show a willful (deliberate) and wanton (blatant, obvious) disregard for the employer's interests. You were showing up every day and doing the job to the best of your abilities, just as you had been for the last nine plus years.

    Be polite, professional and do not talk too much. Do not carry written things into an in person hearing, though you may have notes of points to make when you are in a phone hearing. But tell your side of the story. Do not whine, beg, or bring up irrelevant things. Don't mention any problems with your work that they didn't mention. Do be very careful to answer the hearing officer's questions. Do not argue. And you cannot stress enough that you always did the job to the very best of your abilities. You tried. They were not happy, but you definitely tried.

    Be sure you are making your weekly certifications for benefits between the filing of the claim and the hearing. If you are approved in the hearing you will be backpaid only for weeks that you have certified for, regardless of how many weeks have passed. No one who is terminated from a job can reasonably expect to be approved for benefits, even in the best of circumstances, for at least six to eight weeks, maybe longer. It isn't an income maintenance program. Best of luck on your appeal.

  3. #13
    Join Date
    May 2018
    Location
    Lexington, KY
    Posts
    7

    Default Re: Unempolyment Denied for Wilful Misconduct

    Thank you so much for this you are so right.

    God Bless

  4. #14
    Join Date
    Oct 2006
    Posts
    16,474

    Default Re: Unempolyment Denied for Wilful Misconduct

    Quote Quoting rrose9791
    View Post
    The claimant was discharged for failing to perform the work to the employer's satisfaction. The findings of fact establish the work was within the claimants ability. The claimant was aware of the job responisabilities and had been previously warned by the employer. The claimant failed to perform the work satisfactorly after receiving warnings. The claimants actions were in willful or wanton disregard of the employers business interests. The discharge was for misconduct with the work

    It is a medical disability?

    So I really have no hope of getting unemployment?
    If that was what they said, you still have a shot at getting unemployment. You need to state in the appeal hearing that you always performed your job to the best of your ability. You can also let them know that they downsized and replaced you with a part time person. You do not want to claim any kind of disability because that could cause the unemployment folks to feel that you are not fit to work. If you are not fit to work, you cannot have unemployment.

  5. #15
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Unempolyment Denied for Wilful Misconduct

    Quote Quoting rrose9791
    View Post
    The findings of fact establish the work was within the claimants ability.
    Quote Quoting rrose9791
    View Post
    A large portion of these errors were common punctuation after using spellcheck certain medical items do not autocorrect.
    Quote Quoting comment/ator
    View Post
    Several points you can make and need to make: You worked there for nine and a half years. For them to keep you that long, you must have, to some extent, have been doing a good job, else they would've gotten rid of you before now. Did you ever have good performance reviews, salary increases, words of praise from your supervisors? If so, mention that you've had these. If any were recent, (within the last few months, this year) be sure to bring them up.
    I disagree with this point. A new take on misconduct is that you used to do a good job, and now aren't.

    You do not want to prove that you always did a good job. You want to prove that your punctuation and spelling were always poor provided that was the reason you were fired. If you couldn't punctuate or spell that well ever, then it's "inability" not "misconduct." I so wouldn't refer to things as "common" punctuation. You don't want to create the impression that you could punctuate and spell and were "careless."

  6. #16
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Unempolyment Denied for Wilful Misconduct

    Keep in mind that there are NO circumstances whatsoever in which an employer is required to lower standards for someone who is disabled, or to accept behavior in a disabled employee that they would not accept in a non-disabled one.

  7. #17
    Join Date
    Jan 2015
    Posts
    1,142

    Default Re: Unempolyment Denied for Wilful Misconduct

    There is no new adjudication trend in saying that a person used to do a good job and now is choosing not to. It has been around as long as the program. What the claimant wants to maintain is that her performance has always been about the same, with her doing her very best, as she has always done (!)and up until they were trying to get rid of her, they found it acceptable. They gave her good evaluations, merit increases, etc.

    The performance issue that used to be worked heavily back in the days of manufacturing jobs was when an employee had, in the past, met production goals, and then had deliberately or by choice elected not to meet them any longer. This demonstrated that if he/she was doing their best, they could have performed at an adequate level, but that they, having the capability, chose not to, though they knew this might result in their termination. A carpenter who had in the past done good work, and then deliberately started doing bad work also comes to mind.

    But what you are going to maintain is that you have always done your work to the best of your abilities, and your performance has not declined in any way (because you were trying your hardest) and yet you have been terminated suddenly, at this late point in your employment, for things that used to be acceptable work. Keep in mind that the employer can ask/require/demand the impossible of an employee (totally error free work, NO grammatical, spelling or punctuation errors, spin straw into gold) but this is not really considered a reasonable request. You just reiterate that you showed up and tried your best.

  8. #18
    Join Date
    Oct 2016
    Posts
    4,301

    Default Re: Unempolyment Denied for Wilful Misconduct

    I'd be willing to bet that the employer is not going to say they increased their standards. They are going to say the OP's work dropped below their standards. They are going to have the write-ups to back that up to some extent.

    rrose9791,

    It is my policy to not reply to private messages.

    It is my opinion that if the employer properly presents his case you will not get UI.

    But there is a chance they won't respond or they won't properly present their case. You lose nothing by applying for UI.

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