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"Discharged" for "Unsatifactory", not "Misconduct"

by Eponymous

I've got my initial interview tomorrow, after being fired on April 20th of this year. In the Disciplinary Action document I was offered, but didn't sign, my supervisors write that my "performance has been found unsatisfactory for the reasons set forth below".

I plan to rebut this firing on several grounds but, according to the definition of Misconduct you listed in the Boynton Cab Company v. Neubeck (1941) finding, "unsatisfactory" is not, at least in that case, to be considered "misconduct". Is this a distinction worth bringing up in the interview?

A Distinction Worth Making - Misconduct, Or Unsatisfactory Performance

Don't want to get too excited, but I think you're the first person ask, or at least it's the first question I can recall, that asked specifically if it's a good idea to draw out that distinction
during an initial claim adjudication.

Boynton Cab v. Neubeck, a Wisconsin Supreme Court decision way back when UI law was almost as new as a baby's butt, has gone on to be adopted all, or in part by many other states, as the quintessential definition of what work misconduct is .. and as you noticed, what it is not.

Even some employers can have a tough time seeing the distinction. But then again, they may be susceptible to accumulated training by osmosis that to increase the odds of a denial for
poor, or unsatisfactory work performance, you never admit the employee just "wasn't a good fit" as that might indicate it was the employer who "mishired".

Instead, when someone is written up for poor performance, it's employers aware there is a distinction to be made, may portray the problems with an individual's performance as being one of those other words, like in Discharge for Neglect of Duties, Discharge for a Violation of Rules, anything except an employee's "inability" to perform the job to the standards the employer expects.

Yes .. the distinction is that a claimant trying to avoid the perception they knowingly, wantonly, neglectfully, or intentionally under-performed, therefore not in the employer's best interest, they need to profess it was an inability within them and no matter how they tried to perform their job in good faith and to the best of their ability .. it just wasn't enough to satisfy the employer.

Now .. if you had told me you had in the past received a satisfactory performance review while doing this job .. that would be a problem that would have me asking questions .. to see if there might be a way to resolve that, but only if the employer knows .. it's better to have proof of good performance to compare against poor performance to draw a distinction that goes to neglectful performance.

Good Luck Eponymous.

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