Appealing Denial On Claim For Unemployment Benefits

by Dan

(Bridgeville, DE, USA)

I was recently dismissed from my non-bargaining position as a propane delivery driver. The reasons given for my dismissal were the insinuations of progressive discipline resulting in the company terminating my employment.

In an attempt to summarize, I was disciplined only ONCE during the entire year I worked for this company, and the incident was never repeated (though routinely done by fellow workers and ignored by the supervisor). Additionally, the company misrepresented information offered by customers on my route to use against me. This fact can/will be witnessed to by my former dispatcher. The former Human Resources Manager will also attest to the fact that NO other disciplinary action (other than the one incident mentioned) was ever presented to me.

It’s worth noting that – although the company allegations are misrepresented and/or falsified – NONE of the claims by the company pertaining to my “poor performance” could be considered ‘wanton & willful’ or ‘misconduct’.

Venturing a reason as to why I was terminated … I brought up several safety-related concerns (OSHA/DOT related) to my supervisor, and each time he reacted as if I was being a bother. Most, if not all of these concerns were either swept under the carpet, or ‘doctored’ to give the appearance of compliance, though the safety hazard still existed. I currently have an OSHA complaint being investigated as I write this.

My appeal is set for Dec. 1, 2008, and appropriate personnel have been subpoenaed on my behalf. What I’m seeking from you is a three-fold answer: 1) Does disappointment on the company’s part stemming from my inability to learn other jobs within the company constitute ‘wanton and willful disregard and/or misconduct’? 2) Dealing strictly with this appeal, would proof offered that my fellow workers have routinely been allowed to do far worse than anything I was considered remiss in bereft of disciplinary action be grounds for winning my appeal, and, 3) Based on the information provided, do you believe I’ll win this appeal (more info. can be provided in greater detail if needed)?

Hi Dan,

First, it’s good you have subpoenaed. Just make sure you know what they are going to say.

How much time had lapsed between the one written warning and termination?

What exactly was the reason for termination? Customer complaints? Poor job performance? In other words, what was the FINAL INCIDENT?

1. An inability to learn something is not misconduct, but any employer or their hearing rep worth their salt will try to make it sound like you should have been able to do it and therefore, choosing not to was a “willful” disregard or refusal to comply with a reasonable expectation.

2. This is why I have asked for exactly what it is that caused you to be terminated. It is fairly standard that if one is fired for a rule violation, the state looks to see if it was “uniformly enforced”, and that the employer followed their own progressive discipline policy and if it was one incident that caused the termination, they had a rule that you were aware of that told you breaking the rule could result in immediate termination.

So if you can prove that the rule or policy you were terminated for was not uniformly enforced, it will add weight to the focus of your appeal.

3) I can’t answer, because you didn’t exactly say why you were terminated.

Do you really think you were fired in retaliation for bringing an OSHA complaint, or did you do that after you were fired.

It would be helpful to know exactly what’s on that termination notice.

Chris