Fired for violation of a company policy

Hi Chris,
I have a similar situation. My job was “eliminated” and so I applied for UI the same day. A week or so goes by and I learn via mail that my benefits were denied – my employer stated I was offered another job. I was, but it was not comparable in pay, hours or location. I appealed. Had my phone interview where my Judge stated that my employer requested a continuance (because she was going to be out of town). The Judge informed me that he “promptly” denied their request for continuance.
I stated my case well and the decision was in my favor.
Now, one week later after the decision, I received a letter stating my former employer is appealing the decision. And now they are stating that I abondoned my job AND was fired for misconduct! I have never had any incidences of any sort – no verbal warnings and no write-ups. I am dumbfounded. And worried sick. I have two small kids at home to support and am a single mom.

ANY advice you could provide would be helpful. Thanks!

Well, I’m not quite sure what way the employer intends to go.

Job abandonment is actually a voluntary quit that results from no call/no shows.

But, here’s my question which brings the employer credibility into play.

If you applied for benefits and stated on the claim that you were unemployed due to a lack of work (that is what a job elimination means) then why .. didn’t the employer protest effectively from the start and why now .. are they screaming job abandonment and fired for misconduct .. what .. is she trying to cover every possible reason she can think of that people are denied for?

Additionally, if she requested a postponement of the hearing and was denied, then her reason for being out of town .. must not have been a good cause reason to allow the postponement. Now her appeal has to focus on why her being out of town must be considered good cause for the non-appearance.

If the board finds that to be true .. then there will be another hearing.

Let me ask you this .. were you ever provided with a termination paper which stated job elimination as the reason for being let go?

Misconduct is the employer’s burden .. so written warnings would be essential to prove the misconduct, but job abandonment .. is a quit .. so you need to prepare to prove that you did not quit by abandonment.

Maybe a witness .. paystubs .. questions on cross examination about the LDW date.

When it comes to unemployment appeal hearings where everyone does show up .. it all about finding the weaknesses in their case or testimony and then exposing them by exposing them.

But I have my fingers crossed for the best case scenario.

That would be that the employer’s appeal of the hearing officer’s decision will be dismissed, whether because the decision was not actually flawed .. or because she failed to provide sufficient reasoning to the board for another hearing to be scheduled due to her non-appearance.

anyone out there ever appeal in wisconsin .
I am appealing the decision of the LIRC to the circuit court. HELP

I need to know how I can prove that the ALJ based his decision on hearsay evidence.. and that he stated something that was not even true!
I didn’t get a fair hearing.. what are my rights?? I must have some???
I have looked up prior cases that were given benefits but I am not?? where is the consistancy??? I am confused?? what do i do???????

If you are at a “REAL COURT” appeal level .. maybe it’s time to contact an attorney .. be it legal aid .. or whomever.

I assume .. since you must have already appealed to a board .. that you have the transcript or the recording of the lower level or first appeal hearing?

That is the record and valid points for appeal should be found there.

Beyond that .. how can anyone discuss any problem having to do with why you were denied unemployment benefits .. when left in the dark, with regard to the relevant details needed to discuss the matter.

Find Wisconsin Legal Aid

How long does it take to get final answer from the LIRC??what if they deny it? Then what??

Can I assume by LIRC you mean Wisconsin’s Labor and Industry Review Commission?

I have no idea how long they are taking to give final answers .. appeals beyond a board level appeal become “real court” appeals.

Wow this took almost 3 months to get, they must be backed up like crazy.

I was pleased to open my mail this weekend to find a lovely letter from the Board of Review affirming my case 🙂

It says Decision becomes final 10/10/2009

Judical Review Right expire 10/25/2009

Why does it take 15 days for the decision to become final?

Hopefully this is the end of it now, if they push this for judical review i will let you know, but i would think that would be a fruitless effort on their part. I hope they let it be now, i can’t imagine them wasting more time and money on this they have lost all 3 steps now in the process now.

Hi Sean,

I can’t imagine that they would waste the money either. Most third party admin. are done helping if a board review comes back denied again.

The 15 days is the time they have to file an appeal, but further appeals actually enter the “court system” .. it would be reviewed by an appeal court, although I’m not sure which one it would be in GA.

It would cost more for the lawyer than the benefits.

I do know why an employer would like to get a decision reversed if there is additional litigation or a lawsuit to consider, but it only makes sense if a state considers a UI hearing decision binding with regard to other litigation.

Congratulatins.

Let me type up the letter real quick for you, it might help for any future GA folks with this.

ACKNOWLEDGEMENT OF APPEAL TO THE BOARD OF REVIEW

All appeals to the board of review are decided upon the testimony and documents already presented to the administative hearing officer. the board will not take additional evidence in accordance with official rule of Goergia Dept of Labor 300-2-5-.03(2). Any party may file a written argument in support of their position for consideration by the board. The written argument should clearly outline the party’s position as to the facts already presented. A copy of the written argument must be mailed to all intersted parties. For the board to consider the argument it must be recieved within 10 days from the date of this notice above. The board of review will permit personal appearances for oral argument only in exceptional circumstances. A written request to present an oral argument must be recieved at the board of review’s office within 10 days of this notice. The board of review will issue it’s decision and a copy will be mailed to all parties at the earliest feasible time.

That’s it, nothing about transcripts or anything.

Thanks Sean, when I get a few minutes I’ll dig out and pull up all my GA references and instructions and see if there’s anything else to add to this subject.

Chris

Chris,

I called the Board of review this morning to see if i could get a copy of what there basis of appeal to the board is. The lady said basically well you don’t need to do anything the burden of proof is on the employer not on you. I asked about sending in the affirmation letter on why i agree with the hearing officers determination she said i can write a letter and send in if want too although i really don’t need to? I also asked again well can i find out what there basis of appeal is to the board, she said well they are just disagreeing with the determination….well of course i know that lol, she was not a lot of help. Should i just write an affirmation letter and send it she has me confused now 🙂 I really don’t feel the employer stands a chance here at all, but i want to make sure i cover my bases 🙂

Here’s the thing .. they can appeal for a review .. because they disagree with the decision, but there needs to be a basis for the appeal .. to be successful.

Doesn’t the letter say something about a transcript being prepared or whether you have to send some money to get a copy?

They usually give a deadline for any “brief” to be submitted .. which is what an attorney would do if they honestly thought they could get it reversed.

The affirmation letter isn’t necessary, it’s just what “they” would do if you appealed .. you’re not required to do it.

Sean, it’s really difficult to get a hearing decision overturned. Boards, depending on the law, have the ability to reverse, amend or modify, order a new hearing or another hearing to develop the record further, but it all depends on their review.

From what I know about your case I personally, think the employer is howling at the moon .. so to speak. Of course, you could dig up some court decisions online .. to get an idea of what goes on you might take a look at this. I haven’t yet, but I’ve bookmarked it. Just found it when I was searching for some information for you.

Chris

I have no idea how far they are willing to go with this? I never really saw how far they went with any of them when i was there, i just saw the results one way or the other after they were done. I can tell you the third party they have always used and also in my case from the start has been a company called ************, i assume this is just a standard thing they do. The notice of appeal i got does not state anywhere what there appealing on at all, says both parties have option to present written oral argument based on evidence and testimony already given at prior appeal hearing. Do i need to write a response letter to this and send in stating why i agree with the hearing officer? Basically letter states board will only review prior hearing/no new evidence, employer can request oral argument but these are only given in exceptional circumstances. Both parties may write a written argument and mail to all parties within 10 days and lastly the board will issue it’s decision and a copy will be mailed to all parties at the earliest feasible time.

Oh, The big one.

Yes, they are big, but they aren’t that great. I’d be more concerned about the small companies that “specialize” in unemployment, instead of gathering employment and wage information about us.

You’ll soon get the employer’s appeal letter. Then write your letter after you know what they are basing their appeal on. You should also receive the transcript.

An appeal to the board, of a hearing decision has to be based on the hearing record. No additional info or testimony .. They need to find error with the way the hearing officer conducted the hearing .. maybe not allowing something in .. disregarding a valid objection, giving to much weight to HEARSAY when refuted by direct … I’m not a lawyer, but if you have common sense and if you can find a state’s rules and procedures for hearings .. you can figure it out.

Sean, I know for a fact that if the employer tells this outfit to appeal to the board .. they will irregardless if it has merit or not .. I cannot tell you how many times I heard “I want to appeal this on principle”, every once in a while, I understood why.

Chris,

Just got a note in the mail that now the employer has filed an appeal with the board of review. Sure lots of these and it just basically says either party may submit a written argument based on the facts already presented. States they can request an oral argument within 10 days and the board will only permit those in exceptional circumstances. Do i need to anything here or just sit and wait on the results? this is getting silly.

Hi Sean,

You’re telling me. There’s been a rash of people coming back to say the employer has appealed to the board.

It may just be the tough times and they’re using creative ways to reduce their workforce or their payroll .. I have lots of opinions and they are based on nothing, but my own suppositions .. so maybe I’ll just save them for a series of soapbox, tongue wagging articles that no one will ever read .. I know I can go on and on:)

I’ll tell you what is done for employers .. who have help when a claimant appeals to the board. A letter of affirmation is sent stating why the decision should be allowed to stand.

Funny thing. Out of all the unemployed people .. the recipiency rate for unemployment has been going down and down .. especially over the last 20 – 25 years. Yet if you believe some of the stuff in forums directed at the other side .. everyone gets unemployment .. and they don’t deserve it.

We all know there are those that don’t deserve unemployment, but somehow get it. But nobody talks about people who didn’t get unemployment because the employer who creates an atmosphere, which if an employee is perceptive will recognize as a set-up for being fired. And the reasons behind this are not at all without bias of some kind.

I know there’s good employers, good bosses and supervisors, good HR people .. I’ve met and developed relationships with quite a few .. but I’ve also met some doozies(?) and they are willing to do whatever it takes. I cannot abide that. I always wondered if employers were aware that the penalties and possible prison time for unemployment fraud .. cut both ways.

My God, all I have to do is write the word soapbox and I jump up on it:)

You are right .. it is silly and you ought see the beads of sweat forming on my brow with worry for you:)

Do you think they’re ticked off enough to take the boards affirm decision to court?

I know you love details so i thought i would share the wording of the decision with you. I quite enjoyed reading this

REASONS FOR DECISION O.C.G.A section 34-8-194(2)(A) provides for a disqualification if it is shown that an employee has been discharged from work with his most recent employer for failure to obey orders rules or instructions or for failure to discharge the duties for which employed. This section of the law places the burden of proof on the employer to show by preponderance of the evidence that the employee was at fault by a deliberate, willing, and knowing action on his part. O.C.G.A section 24-1-1(5) defines preponderance of evidence as that superior weight of the evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.

In the present case, the evidence shows that the claimant handled the situation on March 12th, 2009, in a reasonable and professional manner. In a discharge the employer has the burden of proof. In this case the employer has not met there burden of proof. Therefore a disqualification is not required.

I know what you mean about pins and needles, i had that all the way to the end, i was calm in the hearing and got my points across, i felt pretty comfortable in that chair having been on the otherside of that very table many times i knew the way it worked and basically let the employer hang themselves in there which they pretty much did, not a single piece of evidence was submitted as they had nothing. there whole appeal was oral hearsay and like you said they really messed up by not using the correct witness. In fact the hearing officer was quite surprised by that i could tell, first question he asked of the employer witness was “were you in GA with the claimant at the time of issue?” Response was “no” the hearing officer clearly had a puzzled look on his face with that one.
He also questioned the employer pretty hard on the issue of the employee i terminated becoming hostile, he asked employer “well what exactly is someone supposed to do if an employee becomes hostile” the employer started there policy ramble again which doesn’t exist and again the hearing officer looked quite puzzled.

Again i sincerely appreciate your advice and support and anyone i know that ever has to go through this nerve racking procedure i will point to your website.

I do like detail merely because it’s easier for me tell people what to focus on and most importantly, what to avoid focusing on .. if the other side isn’t smart enough to bring it up .. oh well.

Chris,

I wanted to thank you for being a bolster of support through this with my questions along the way, as you know i had my hearing on Monday and boy was it a nice surprise to pull the letter from the hearing officer out of the mail and find the employer failed to meet burden of proof and initial examiner determination stands. I knew i had a strong case but you never really know for sure until they are over with, i was shocked how quick i got that in the mail, i figured a week before i heard. I know they can appeal this to the board of review which i doubt they will bother with, but if they do from what i know it is very rare for the board of review to overturn them the way i understand it, is that correct? I hope so i feel a nice sense of relief right now.

Sean,

I am so pleased!!! I know that most of the people who visit this website are on pins and needles and it’s mostly because they have little understanding about the whole unemployment “thing”. You had experience, but it is still daunting from the other side of the table.

Boards of Review .. You’re right .. if they couldn’t win at hearing .. it’s doubtful they’ll get the board to reverse or remand. Board appeals need to be based on procedural errors .. in other words an error by the hearing officer .. In many states it is a “brief” that is submitted. I would never advise anyone to appeal to the board on their own. A person really needs someone acquainted with a states rules and procedures and access to case law.

I have lots of opinions about UI:) some are based on experience and some on pure speculation.

I think every state has at least one hearing officer that gets overturned at the board level more often than all the rest .. I have a special name for them, but I do try to be respectful of everyone. You’d know it if you drew one.

When I worked for a third party admin. Board appeals were commonplace despite the fact that it was useless .. keep the customer happy, you know. “I want to appeal on the principle” is heard often.

Congratulations Sean. I wish you all the best .. and you are very welcome!

Had the in person hearing today, think it went well, employer kept rambling about policy but never showed any documents to back it up. Employer witness was also the same title i was from another state that called in by phone only thing they could say was we all did a management training course together 5 yrs ago and they claimed we did go over these termination steps, employer was sitting there with this training manual i asked him to show the checklist, he never did as i know for a fact there isn’t one he was bluffing it. Appeals officer asked that witness if she was present at the seperation i did, she said no.

I had my ex supervisor call in as my witness and he verified when we worked together there was no such policy and when the employer fired him he was not asked for company items before being let go. I think it went well but is very hard to read those hearing officers, i know they are trained to be that way. How long do you think it will be until i get his determination in the mail? Being on the other side of these i never saw them as corporate got them, the waiting part is the worst now.

Hi Sean,

Decisions generally take about a week to 10 days, but since your hearing was on Monday .. you might see it by the end of the week.

Hearing officers are charged with conducting an impartial hearing .. most would probably be excellent poker players.

Sounds like the employer didn’t have the necessary witness .. which would have been the person you had witness the termination.

At least that’s what I would have wanted. A first hand witness to testify that you botched the termination .. backed up by a signed acknowledgment with a checklist of items taught or reviewed in the “TERMINATION TRAINING SESSION”

I believe that for the employer to sustain their burden they would have needed at a minimum, witnesses to rebut your testimony and prior warnings.

Direct testimony always carries more weight that hearsay testimony .. so hearsay isn’t much use when trying to rebut ..

Waiting almost as anxiously as you are for the decision:)

Chris

I will be at the hearing, i am quite looking forward to getting this done and out the way. I will let you know how it goes, now back to the wating game again 🙂 I still don’t see what they hope to gain from it over a phone hearing, like you said intimadation tactic sounds about the way they want to play this.

You’ll probably drive all the way to the hearing location .. only to find out they are withdrawing .. petty, but common .. or maybe .. just maybe they are having legal look it over due to the EEOC?

I had my hearing (telephone) set for this Wednesday, want this over with! GDOL calls me this morning and says they will reschedule the hearing as the employer has now requested an in person hearing instead of a telephone hearing, so now i guess i will wait another few weeks to get this over with. I don’t see what they hope to gain from that, i already have the pack the gdol sent me for telephone hearing and they had nothing there, no policy nothing. Are they just playing games now?

Hi Sean,

My guess is that it’s just a stall or intimidation tactic. You would be wise to appear in person also.

I use to deal with a VERY LARGE outfit and the GA HR manager always insisted on in person hearings .. she thought she got better results that way.

The hair raises on the back of my neck just thinking about her phone calls.

My thoughts exactly, i am pretty sure the whole thing was a setup to get me out. Appreciate the tips I will rebut whatever garbage they throw out, they have no documents at all, no written policy nothing,i know this employer appeals everything regardless in the hope they win a few, some how i don’t see them winning this. I will keep you posted. I am actually glad they don’t have any paper submitted, it should make this thing a lot easier for me, i don’t think appeals officers take too much notice of verbal arguments without paper to back it up, at least that’s the way it’s always appeared to me when i have been a company witness in these things. Pretty bad when they can’t even get my employment dates right on the submission to the labor board, shows how incompetent they really are.

Sean,

Your welcome. Your right about hearing officers liking paper to back-up appeals. I’d go so far as to say .. that frivolous employer appeals annoy them as much if not more than unprepared claimant appeal .. at least a claimant has the excuse of inexperience.

Employer’s play the odds when it comes to appeals .. every once in a while they get lucky and the claimant doesn’t show .. if that happens a few times a year, we’re talking about a “substantial savings” with regard to their experience rating.

Look forward to hearing how it all goes.

Chris

I think the employer is wasting their time. I think the employer wanted to get rid of you and jumped at the first opportunity. I think an employer who has decided to base their appeal claiming “failure to control a termination by not following nonexistent procedures” for a person that they discharged by a swimming pool can be likened to the pot calling the kettle black.

Just remember that it is the EMPLOYER that has to PROVE their case. All you really need to do is rebut whatever argument they present.

This is a waste of time appeal. I would advise an employer to withdraw the appeal. No documents, no damning first had testimony, no damning witness statements and is it really reasonable for someone to believe that if you had asked for the keys before you let the person know they were being terminated that the situation would have turned out differently?

Give me a break. Worst case scenario .. I think .. is that it could be found that you made an inadvertent error which by no means rose to the level of MISCONDUCT.

Ok here goes.

There argument is I did not follow policy correctly as i had done all prior times and because i told the employee he was fired before i asked for the keys it was my fault.

1. I did this seperation the same way i did all prior ones and they never witnessed any seperation i ever did so there claim i did this one wrong is kind of odd since they can’t prove i did this one any different to any prior ones. I did all of them the same way i did this one. They never verified a single one ever so how they make this claim is interesting. Should i state to the hearing officer i did this and all prior seperations the way i did this last one? That is the truth and i was never questioned once about any of them by the employer nor did they witness a single one.

They did not submit a copy of any policy showing i did it wrong ( of course i knew they couldn’t as it does not exist on paper) so i think they are going to have a hard time with that one don’t you?

They checked NA to written warnings (of course there is none on my file as i stated, never written up for a thing)

They never submitted a copy of my statement or my witness, in fact they haven’t submitted any documents at all, there whole appeal is an oral argument.

They got my employment dates wrong on both hire date and term dates as well, i will point that out to hearing officer, think that gives them a credibility issue as well.

They stated i fired the employee in an uncontrolled enviroment, he was fired in the only building we have at the site in an office area with no other employees around other than my witness, not sure what they are attempting with that, but i could mention i was fired by the swimming pool of a hotel (true)is that a controlled enviroment they are asking for?

They also state i was made aware of this so called rule at the time of hire yet can’t produce any paperwork and it was constantly reiterated (no paper trail and it was never reiterated as they claim first i heard of it was when they fired me) , i can also debunk that as when i was hired i was not hired in any supervisory capacity therefore even had such a rule existed i certainly would not have been told about it at hire and when i was promoted it was a different Manager entirely that trained me how to do seperations and i did them the same way for all these years.

What do you think?

I will wait on the paperwork, they filed appeal on Monday so i guess it will be a week or two until i get the paperwork, I should recieve copies from the GDOL of what the employer has submitted to the state for review at the hearing?

As for a rep unlikely, all the hearings i ever did for them it was just the direct supervisor and maybe a witness if any.

I think I’d let the employer submit the policy they want to use. I would submit the statement from the witness to the termination .. as well as your own if the employer doesn’t do it for you.

Why wouldn’t you be able to use it? If she’s not there at the hearing .. the employer can’t rebut the statement except with hearsay, since you and she are the only ones with direct knowledge of the “incident”. The employer needs her at the hearing, otherwise the only thing your former boss can testify to directly with regard to the whole mess is the “phone conversation” with you.

You’ll win. The reason they discharged you doesn’t hold water. If you had failed to call the police .. then it would be a problem.

Will your employer have a rep?

I don’t know about the documents yet, i have not recieved the appeal paperwork, i happened to be in the GDOl this morning and asked if they filed an appeal, she looked it up and said they filed appeal a few days back and i should get something in the mail soon on it. I agree with what you are saying, how about when i get the appeal notice i submit the witness statement as evidence to be sure it’s there for review on the hearing, if she is on the hearing i can use it correct? If she is not it i know i can’t use it. Also i have the employee handbook which is basically the book of company policy, nowhere in there does it state anything about there being a procedure checklist of order for how to word a seperation, should i send that as evidence there is no policy or not submit since it’s only purpose is to prove there is nothing in it, i ask as i am not sure if the appeals board wants me to copy and send 60 or so pages. Normally that would be used to prove something was in the book, i am trying to prove there is nothing in it so wasn’t sure what to do on that one.

An EEOC complaint might be something you mention, but the fact that you filed it after separation kinda takes any punch out of it. If you had filed one prior to termination you could have contended the firing was an act of retaliation.

I wanted to make a point about the written witness statement.

Did the employer submit it as documentation with their appeal .. I can’t remember off hand how Georgia works, but I seem to remember that the hearing notice doesn’t come with documents .. did the employer send the statement with the appeal letter? I personally don’t think it would behoove the employer to submit it especially if like you say the employer intimidates their own witnesses with regard to the testimony they give. If the piece of paper is not made a part of the state file .. you can’t question the witness on any disparity between her verbal testimony and her written statement .. if you catch my drift. Even your testimony about her written statement would be hearsay.

I posted comment once but don’t see it so sorry if this ends up as double post.

Yes you are correct i have been in many of these hearings with this employer, now i find myself on the otherside of that fence.

My witness statement is inline with mine, nothing damaging there. The twist is knowing this employer they will have my witness as there witness on the hearing as she was the only party other than me that witnessed this, knowing there tactics of how they like to coerce people i have a copy of her statement she wrote at the time which as i said is inline with mine, so if the employer tries to sabotage that i can cross examine based on what she wrote and they are both under oath so i don’t think there will be an issue but you never know what they have done to the witness since i was fired.

One other thing this was not in direct relation to the seperation (least not on paper anyway) i was subject to harrasment based on national origin for last couple months i was there, did not take it further at the time out of fear they would retaliate, after i was fired i did file an official complaint with the EEOC which was filed and accepted for investigion by them on 4-1-09, not sure if i should even bring this up in hearing or not.