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Fired - Failed to Perform to Employer Satisfaction

by Kelly
(Austin, TX USA)

I was fired from my job on June 12, 2009. As per the termination paperwork they gave me, it says "Company Procedure Violations - You are terminated for inefficient and careless performance of duties".


Basically for making mistakes!

I was hired May 2007 as a Billing & Dispatch Clerk for a delivery company here in Texas, and did that job for my first 9 months, with no problems or write-ups.

Then in Jan 2008, they "promoted" me to the dispatcher position and had me doing that, altho I feel I was never really trained properly nor "qualified" enough to handle the job, since I had only lived in Texas for so long and didn't know the area well enough to route the drivers.

Their way of training was yelling at and berating me mostly. I know it's not against the law for a boss to be a butthead to you - just as long as it's not discriminatory in nature - but it all made it feel like a hostile and uncomfortable work environment for me (I'm female by the way).

I got a write-up in May 2008 for failing to contact a customer that their freight was delivered damaged. I never made that mistake again!

Things went fine from there - altho I'd still get taken into the office to get yelled at for things and told how poor of a job I was doing. Altho I couldn't understand if they knew I couldn't do the job - why did they let me keep working in the position?

In October 2008, they laid off a girl who was working in the dispatch office with us, and then in February 2009, another guy in the dispatch office was transferred to a new warehouse.

So that left just three of us working the dispatch office - me, my boss and the night guy who came in at 11:30am-12:00pm.

Most of the time my boss would be out doing deliveries on his own or other things, leaving me in the office to handle ALL the phone calls, the clerical duties AND the dispatch stuff. I was doing the work of 2 people most of the time, and at times, I had to wait 3-4 hours before I could even use the restroom since I was told to never leave the dispatch office "unattended", and had to wait for my boss or the night guy to show up.

So, since I was totally over-whelmed at times, not properly suited for the job - in my opinion and the company's - I ended up making some mistakes.

Feb 19, 2009, I got a written warning and suspended for a day for telling a consignee over the phone (a person we were delivering freight for, for a customer of ours), that we were holding the freight on the dock since the shipper was behind in their payments and I was told by the accounting department that freight wasn't allowed to leave the dock because of that. My boss overheard me tell this person this over the phone and had a fit.

Apparently, I wasn't supposed to do that - and I was never told about it, until he presented me with the write-up and said that he had to suspend me for a day to "save my job" since it was something you get get terminated for and he didn't want that person to call the shipper and end up telling them what I had said about their account situation!

So lesson learned - never did that again!

On June 12, 2009 is when I was fired, since there was a couple of other incidents with other customers - he claimed I screwed up on.

One he said that the customers called and complained about the poor service I was providing them - altho I have an email of proof from one of them, thanking us for the good job we did, and then other customer denied even making a complaint to my boss - since my boss said he had called and "chewed him out" - when the
customer said he never did.

I work for a company that fights UI claims, and of course I was denied when I filed. I did file for my appeal on June 25th - but haven't heard anything about my date yet (I read it takes 4-6 weeks!).

After I got fired, I typed up my own statements about everything that had happened - my side of things, got the email from the customer, and also mentioned in my statements the things I went thru while be "trained" for this position and just how I felt I was fired at the employer's "convenience" since the last "incident" was June 8th, my termination paperwork was dated June 11th, and then I was fired at the end of the work-day on Friday, June 12th!

In all, I just feel as if this company chewed me up and spit me out. I even came down with Grave's Disease while I worked there, but toughed it out and didn't miss any work - since I was terrified of losing my job over taking too much time off of work - which happened to another person who worked there!

I'm just hoping, based on what I've explained here, that I have a chance for winning my appeal?

I mean, I did get written up a few times - altho for all different matters, not the same one over and over again.

I don't know if it matters much that I found out thru the grapevine that my boss didn't like me because I was Gay (altho I never "flaunted" that fact at the workplace), and also didn't like the fact that I'm Atheist - and even made a big stink about it in the office one day when we were discussing some religious stuff.

So, sorry for the long story. If you have any questions to ask me - let me know. I've been off work for a month now, and it's tough out here in Texas to find work. I've applied at about 40 places so far with only two interviews.

I'm really hoping to win the appeal!


Hi Kelly,

I hope you do too!!

When you get to hearing just focus on the fact that you did the job to the best of your ability and how all the errors were inadvertent and not intentional. As well as the fact that your only training was while be yelled at for making mistakes. The actual mistakes do matter. Repeating the same mistakes after being warned is never good.

Now tell me this .. the incident that you were fired for .. is there a written "procedure"?

inefficiency is basically "inability". Inability is not misconduct, but carelessness is. That is what the employer will be trying to prove. You said over and over that once you learned something .. you never did it again. So focus on how procedural errors that the employer says you made only became known to you when you made a mistake and once corrected by the employer you were never written up for the same again.

You know what Kelly, good cause or the lack of it in your case .. very often can only be determined correctly with actual testimony from both sides which fully develop the circumstances. Initial determinations denying because an employer has write-ups, usually lack the full story .. an unemployment hearing is a fact-finding mission and most hearing officers are fair and impartial, but if we accept that we can only get unemployment when we lose our job through no fault of our own .. it should stand to reason that it has to be found that the employer was at fault so that's always the focus.

Did you look over the TX precedent manual (bottom right of the page.)

You're right about it not being against the law for a boss to be a butthead:) but an unemployment hearing is a great place to get that butthead to show his ass through your questions .. when given the opportunity.

Chris



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May 27, 2010
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MY EX EMPLOYER IS NOT APPEALING
by: SHON

If my ex employment is not appealing would they still get invited to the appeal hearing? i'm in California.


Yes, they are an interested party .. therefore they will be notified of everything you are notified of.

Jul 29, 2009
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Lost the appeal...
by: Kelly

You were right...Texas is pretty quick and I got my decision in the mail today.

Looks as if the hearing officer just went along with everything my ex-boss said, since under the "findings of fact" in the paperwork, she quotes everything she was told by them, and none of my side of things is even mentioned in it! WTF?

I get a second chance appeal, where another hearing officer goes over everything and then makes a decision.

Would it even be worth my time to attempt that?

Damn, I'm bummed. I worked so hard on all of this too for the last month too...


Kelly,

Use the email us button and email me. I'd like to actually read the decision

Jul 27, 2009
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Hearing over and done with!
by: Kelly

Hey Chris -

Well, the appeal hearing is over and done with and is kind of looking 50/50 for me.

I wasn't allowed to submit certain things I wanted to say since the appeal officer said it only had to pertain to the case on hand.

Such as the fact that they never gave me a written performance review - that wasn't allowed and was "stricken" from testimony.

We mostly concentrated on the mistakes I had made and my boss didn't really have some of his notes together and didn't remember some of the incidents, altho I did and just patiently had to wait my turn to speak to give the correct story as to what happened.

I also got them on a couple of things. Like the fact they tried to say how I had all this dispatch experience on my resume when I was hired - but in my rebuttal when the hearing officer asked me about it, I told her that during the interview, I was never asked about it and was there to be hired as a billing clerk and not as a dispatcher. So I'm not sure if that will work for me.

I feel as if I was more organized about everything than they were for my side, and had done my "homework".

My final statement pretty much said how I didn't get proper training for the position, tried to the best of my ability and no matter how hard I tried, I could not meet the company's nearly impossible standards for this position. I said a bit more than that - but that's the gist of it!

So we'll see what happens. The hearing officer said the notice of determination will be sent within 2 weeks...


I think it will be okay for you Kelly. Those hearing officer really do like to focus in on the whys of the discharge and keep extraneous stuff out. They are trying to gather information to determine if there is any culpability on your part for what the employer is calling misconduct.

Texas is fast (you are in TX .. right? I'll bet you have the decision by Friday or Monday. I'm almost as anxious as you are to find out:)

Chris

Jul 18, 2009
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Not the mistakes -
by: Chris - (webmaster:)

Not the mistakes Kelly .. the fact that you did the job to the best of your ability and that there is no "written procedures" and the only form of training you received was a talkin to when you did something wrong.

Once corrected you never made the same mistake again.

You requested training, but to no avail.

Kelly, if it wasn't your fault .. it has to be the employer's fault to get unemployment.

You did the job to the best of your ability and despite your best efforts .. the employer continued to find fault with your performance, but not due to not following procedures, but procedures formed after you made the mistakes.

It's a slight subtle difference, but I think it's important to understand .. it is consistent with your argument that there was no willful or intentional disregard of the employer's procedures .. how could there be if you weren't aware of it until you made a mistake.

Kelly, anything the employer was supposed to do .. like a performance review and they didn't only helps you.

Just stick to the key points .. don't start bringing in alot of other information .. focus on the strengths of your case and understand that it is the employer that has to sustain the burden.

If the employer doesn't show .. he better have requested a postponement. That's how he can get it reopened in Texas. And you be right back in the same boat doing it again .. hope he shows up.


Jul 17, 2009
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Re: Appeal
by: Kelly

I got my paperwork in the mail today for my Appeal hearing. It's on the 27th at 10:15.

I think this may be to my advantage since my boss may be too busy at that time in the morning trying to get things done (drivers dispatched and out the door, etc), and it's the last week of the month - which is usually busy!

I don't think he'll be able to get in on the conference call with HR Dept and the Appeal people - but I know not to get my hopes up!

Anyway, they sent me over all the paperwork my job had sent them - all the write-ups and their statements, and I feel I can work with it. I already found a lie on one of them!

I know what you told me - just concentrate on the mistakes and explain each one, right? Also mention how I felt I wasn't trained properly for the position?

Will it help my case at all if I mention anything about being left alone in the office for hours at a time having to do everything? Doing the work of two people at times?

What about mentioning how they knew I wasn't right for the job, but kept me on it anyway, "setting me up to fail"? Should I say something like that?

Also, does it matter that I was never given a written performance evaluation? As per the company handbook, it states that "all employees will receive a written performance evaluation annually - dating from the date of hire". I was there for there for two years, one month and one day and never got one. Can I use this against them and mention how if they say (as per the UI disqualification statement) that I failed to perform to the employer's standards - altho I was capable of performing adequate work? Wouldn't a written performance evaluation on me back up them trying to say that I was capable of doing the job?

I'm just trying to get as much ammunition together as possible to win this thing, but then again I don't want to say anything that isn't relevant to the case on hand and the UI folks try and wave it off and knock a few points off of me.

Any suggestions Chris? Altho I will be following the advice you have given me so far! :)

Thanks again!

Kelly








Jul 12, 2009
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I think your appeal is winnable!!
by: Chris - (webmaster:)

Kelly,

Your friend is giving you good advice, in fact your friend may be a good witness to have .. to corroborate the "working conditions":) and I think you have a very good chance to win your appeal. Everything you said makes me think you'll win .. otherwise I'd probably be asking more questions in an attempt to help you focus on what I think are the potential strengths in your situation.

Butthead adjudicators: Some really are, but I think most are just "overworked" nowadays. Unemployment laws are supposed to be construed in favor of the unemployed person when in doubt, but when an employer submits documentation or words their protest well .. this doesn't necessarily happen.

I have been told .. and mind you I have never taken the time to confirm this bit of information, but I have heard that the federal government even has guidelines about the expected percentages for approval or denial of claims based upon different reasons and that the states try to adhere to this. Makes no sense to me, but initial determinations .. often times make me think it's true.

Your California claim just drives home the point because California allows benefits for the reason you quit or were let go by the employer. Although I do know that an employer would protest that kind of thing by saying you didn't seek all reasonable alternatives .. if you failed to request a personal leave after the FMLA ran out.

Texas is fair, but a much smaller percentage of unemployed people actually receive Texas unemployment benefits. They just don't have many provisions and they are sticklers, so it is really important to have a grasp of what you need to win and what hurts you.

It will be a phone hearing and they are usually scheduled for a maximum of 1.5 hours. The hearing officers are lawyers .. and pretty much do everything. When it comes to preparing yourself for a hearing .. I suggest reading the states rules and procedure for hearings .. the hearing officer explains well, but the more informed you are .. the better you should fare.

That page I linked to supposedly has a recording of a sample hearing. If you can figure out how to listen .. probably a good idea .. I tried, but I was missing something and Kelly, almost everyone who comes to this website knows more about computers than I do. Computer stuff truly taxes my brain:)

If you do donate .. Thank you very much in advance.

I feel uncomfortable even asking, but this is a one man show and I prefer gourmet TV dinners to the 10 for 10 kind:) I also would like to be able to offer something back in the form of ???? but I need funds to finance any endeavor.

I'm always looking for suggestions and comments too .. donations do not always have to come from someone's pocketbook.

Jul 12, 2009
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Company procedures...
by: Kelly

Hey Chris -

Thanks very much for taking the time out to listen to my story and your input.

Actually, I was NEVER given a training manual for the job I was doing, so no, there was no "written procedure" for me to follow while doing that job.

Like I said, it was as if I was just flying by the seat of my pants mostly and only knew what was right or wrong AFTER the mistake was made!

My best friend used to be a supervisor and he said I had a good chance of winning my appeal and told me to focus on the fact that I was never properly trained for the position, the yelling stuff, and also how I was never given a training manual for the position and never signed anything for the position.

I DID try my hardest and just was not able to perform the way the company expected me to. I just wasn't suited for the job - and they knew that over there.

They even attempted to take me off of it a couple of times - in Jan '09, they even hired a guy to take over so they could move me back to doing clerical work, but they kept the guy "on ice" for a week and then decided to not hire him since the company couldn't afford a "new hire" at that time!

So the boss said he'd just do the dispatching instead, and that last for less than a week and I was put back doing it.

Anyway, I'm wondering if this all looks like to you nothing but "poor job performance" rather than "willful misconduct"?

It just makes me so mad that when I talked to the UI person over the phone when they interviewed me in regards to my claim, I tried explaining everything to her, she just went ahead and denied me anyway!

And now I have to wait all this time for the hearing to be able to explain again - altho it's nice to be able to get all my thoughts together and to get help from people like you to get my case stronger for this!

I did win an appeal against California back in 2006 when I had quit my job to move to Texas to care for my terminally ill mother. I filed for Family Leave and once that ran out, filed for UI - but was denied, since I had some butthead from UI call me and didn't listen to my side of things in regards to the care of my mother and turned everything around that I had told him!

So I had to appeal and when I did the appeal, it was just me and the judge on the phone and she listened to me and I lucked out, since she knew all about the disease my Mom had (ALS - Lou Gehrig's) and what it took to care for someone with that.

A week later, I got the letter and then a week later got a bunch of checks in the mail!

So anyway, I'm hoping the hearing people in Texas are just as fair as the ones in California. Have you ever had any experience or know about the Texas TWC and appeal hearings?

And in all honesty, do you think I really do have a fair argument to win my appeal?

And Chris, when I get a little bit of extra money - I WILL be donating to your website - since I MUCH appreciate your help!




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