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Fired for Misconduct I lived and worked at the property -- Witnesses are on my side. Second Texas Appeal

(Texas)

I live at the property and work in the leasing office. I got injured at work by hitting my knee in a construction area of a remodeled apartment and it turned into cellulitis. I ended up going to the doctor under worker's compensation and my management was not happy about it. They even called me into the corporate office the next day and requested that I take a drug test even though I took one at the hospital. After they realized I took one at the doctor's office they decided to not write me up or fire me because they did not have any merit.

A couple weeks later there was an incident in the courtyard late at night. A resident reported that there was three guys arguing and they broke the security device to gain entry into the building. The next day I was at work and my boss told me that I was the last person to enter the building after that incident and that I would be responsible for paying for the damages. I said that I did not cause the damage but I was also scared to lose my job so I said that if it was one of my guests that I would pay for the damage.

The next day they fired me. The resident who witnessed the events did not say that it was me who broke the door and even after the management questioned her again they asked her to verify if an employee was involved. The resident submitted an incident report and refused to mention me or state that I was involved in any way.

I filed unemployment my employer appealed it. We had the hearing the hearing officer questioned the employer and asked directly if the witness mentioned me by name and they admitted that she did not. I thought for sure I was going to win the appeal, but I received a decision that stated that I was unable to collect benefits because “there was reason to believe that the employee violated company policy because he offered to pay for the damages”.

I am appealing to the Texas board for the second level of appeal however I need some advice. I would like to subpoena the witnesses because I know they would be

in my favor but I don't know how to request that information be obtained. I would also like the board to be aware that the resident already submitted a written statement but the company refused to supply it because the resident did not mention me. Do I have a chance at winning this? What should I do?

Chris's Response

I'm pretty much over this type of question because it's about an appeal to a board of review and you should already know what I think about unemployment board appeals.

Do you happen to know what the whole point of a board level appeal should be when it's not really the facts that matter anymore, but the hearing officer's decision you are disagreeing with?

Now, you want to subpoena a witness. That's great, why didn't you think that would of been important for the hearing that develops the record full of facts about the incident. I doubt you'll be allowed to ever subpoena a witness, unless you can explain in a written argument (brief) why/how the hearing officer was wrong to determine you the least credible person at the unemployment hearing and put the onus on you for proving your own guilt .. because you "offered to pay for damages" when the employer admitted there only witness statement, didn't name you and the board agrees to remand the matter back down to the tribunal for either a new hearing, or an additional hearing so maybe he can properly lay that burden at the employer's feet to produce this "written statement" that should benefit you .. rather than making an assumption about why you "offered to pay".

I could refer you to someone capable of reviewing records of hearings and possibly finding legitimate merits to base a written argument on .. but I cannot explain to you what might be legitimate without hearing the recording of that hearing .. to do it yourself.

This is why I always tell people it is crucial to be prepared to win the first hearing .. to avoid the necessity to be the appellant to a board of review .. who can only review the fact already in the record .. and any bad behavior you might be able to point out about how the hearing officer conducted the hearing.

Chris

Comments for Fired for Misconduct I lived and worked at the property -- Witnesses are on my side. Second Texas Appeal

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Mar 11, 2015
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Did you explain fully at the hearing the conditions you offered to pay for damages under and why .. that you feared if you didn't, you would be fired?
by: Chris

This is sort of key, considering this shouldn't of been a credibility decision with the employer's testimony they did have a written statement and that it did not name you, nor did the hearing officer ask them to produce it.

By the way, you could of asked the employer why they didn't think it was necessary to submit that document on cross and even of asked for a continuance on the record for the reason of allowing the employer the opportunity to produce it .. or for time to get your own witness to rebut the employer's testimony.

The point is (and I would include reference to it in the appeal letter) The law demands the burden to PROVE misconduct is the employers and even if the hearing officer was biased toward them .. it's a leap to find you guilty based on just the fact that an employee offered to pay for damages an employer cannot prove the employee was the cause of .. without exploring why they may of made that offer.

Mar 11, 2015
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Appeal Letter
by: Anonymous

This is what I have drafted to submit:

The employer admitted their only witness statement and first-hand account of events didn’t name me. Even after submitting an incident report the witness did not name me and acknowledged that I was not involved in the alleged misconduct. The hearing officer was incorrect to determine me as the least credible person and to put the onus on me for proving my own guilt because I "offered to pay for damages". I am requesting the board to review and approve my unemployment benefits or remand the matter back down to the tribunal for either a new hearing, or an additional hearing so that the employer may produce the written incident statement or subpoena the direct witness of the event to obtain first-hand information.

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