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How can I win an unemployment hearing if I was fired for poor performance?

by J Williams
(Kennesaw GA)

A few days ago I had an in person

Unemployment Appeals Hearing with agents of my former employer.

I was fired for poor performance on the job and then i was denied benefits because the original decision was that i was able to perform my job upon hire and in the past so the ability for me to perform was within my control so I cannot be paid benefits.

I appealed the initial determination because there was a significant change in my job as of late in which I was not trained after repeatedly asking for assistant and not receiving help when i asked for it. So i was fired over a change in the job and I didn't receive training for the change.

The only thing my former employer did was show the hearing officer the progressive disciplinary action which was given after the job had changed for which I did not receive the necessary training I needed and asked for.

The good thing about this case is I have a former employee testifying on my behalf about the situation and she has first hand knowledge. However, the HR Coordinator that was there at the hearing has no first hand knowledge over the change in my job and that I was not trained.

The hearing officer picked up on that and started
asking questions of me and the HR Coordinator about the situation and that's when she got nervous.

Now i was a bit nervous myself because I have never been through this kinda thing before, I'm just a 23 year old kid going up against this huge corporate company and there hot shot attorney.

I guess the HR Coordinator thought she would go to the hearing submit her paper work and bully me with the company's attorney on the phone. Who was disruptive and rude during the entire proceeding. The hearing officer was annoyed with what was going on as my former employers attorney managed to piss off the hearing officer.

Because of the numerous disruptions by the company's attorney you know objecting to this and that and having to be over ruled on several occasions by the hearing officer we ran out of time. I suspect the HR coordinator and the company's attorney did that on purpose so they will have more time to go over their story, but that still does not matter since me and my witness are the only ones participating in the hearing with first hand knowledge.

So now the hearing has been moved to a latter date that has not yet been named.

After the hearing the HR Coordinator stormed out of the room in a bad mood.

The Hearing Officer told me to not be nervous or intimidated by the HR coordinator or the company's attorney. She told me to just stay calm and state my case to the best of my ability because she is an attorney as well and she knew what they were trying to pull and she did not like what was going on. She was talking to me on a real level as a person she will be the hearing officer when the case is rescheduled.

I know my former employer will have to show I intentionally neglected my job responsibilities. All they have are write ups, but nothing to show where they took steps
to make sure I received the training I asked for to help correct the situation I was fired over.

Does anybody have any pointers for me when the hearing is rescheduled?

Response to:How can I win an unemployment hearing if I was fired for poor performance?

Hi J

Yes, I do have some things to say, but I think you're right on target.

Believe me, I'm certain the HR person nor the rep was ready for you .. because normally, they can rely upon the claimant's ignorance of the intricacies of a well formed argument .. (which you've got).

I think you have a firm grasp on the central issue of your unemployment appeal.

Poor performance cases are actually, difficult for an employer to sustain their burden that the discharge was for misconduct when it is shown that there was a recent change in the employment, as in your case, when the employer failed to sufficiently train you for the change in duties.

The element an employer must prove for discharging for a performance issues is exactly what you stated, and all about an attitude of "neglect".

The employer's agent could of been a non-attorney hearing rep working for the cost control company your employer uses. Georgia does not require a licensed attorney for hearings, not even when you the claimant pay a fee for representation.

Your hearing has been "continued" and just a word of caution to anyone else reading, unless it is you that would benefit from a continuance .. I would place an objection to a continuance if need be.

Why? Because the employer is now in a position to add the necessary witness with first hand testimony to combat your story. (I would never of advised an employer to attend a hearing without the first hand witness).

So be on your guard and start thinking about this from the employer's perspective and what they might do to remedy the mistake made at part one of the hearing.

Consider who might show up at the next hearing and what they may give testimony to. Prepare for this .. even if it means locating documents that could rebut the possibility of first hand testimony.

Be sure your first hand witness is again available if they are needed to give rebuttal testimony for the new first hand testimony.

The hearing officer gave you good advice when she told you to stay calm. Calmness enables you to think more strategically. Jot down notes during testimony if you feel any information has been given that you think may be necessary to provide additional testimony about.

I have a friend who is in the biz of representing employers at hearings. His mantra is "if they're cryin' they're lyin'"

Emotion is a distraction and after all that often times causes us to do and say irrational things.

When you self represent at an unemployment hearing, you are acting as your own counsel so stay calm .. to stay in control.

I don't know about all of you, but if I had an attorney who started crying and getting emotional I'd fire them because there job is to use their expertise to look out for my best interest.

I can tell J, this likely isn't your problem and I appreciate your story and question because I rarely get questions from such an informed perspective.

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Oct 31, 2009
And the verdict is....
by: jessica Williams

I won!!!! After 8 long months this is finally over.

The hearing officer did a great job with the finding of fact letter.
I don?t think my former employer will appeal this any further, and as you said the employers testimony was hearsay so the hearing officer only went on my testimony.

I will let you know if they try to appeal to the board, but it?s very doubtful.

Thanks a bunch for your expertise because you really helped.

FYI the reason I said the 3rd party rep Barnett Associates no longer represents my former employer is because in the hearing the officer wanted to make sure the decision got mailed to the appropriate addresses and Barnett Associates was listed on one of the addresses for the employer, and the HR coordinator said they used to represent us, but not any more ha ha lol ?

I guess after the first hearing my former employer was very unsatisfied by that attorney, but I don?t blame them I would have fired him to.

Any way God Bless!!!

Oct 28, 2009
Hi Jessica again , I had my in person hearing once more today.
by: Jessica Williams

Ok so we did the hearing again and I must say the HR coordinators testimony this time around was much worse than last time.
She could not remember a thing she keep tying to read her testimony of a sheet of paper the hearing officer told her she could not do so.

O yeah FYI the 3rd party rep no longer represents my former company anymore huummm wonder why, so there was no attorneys involved except the hearing officer.

The hearing officer hounded the HR coordinator on her knowledge of my work and situation. He asked was her knowledge first hand or not , she said it was what she heard from my supervisors and of course non of my supervisors participated in the hearing which only took about 30-45 min.

The HR coordinator admitted that they had terminated me in regard to an account that training was not rendered on my behalf despite my please to my superiors for help, but she went on to say although once trained she felt I should have been able to do any account handed to me. Of course I explained that process and proceeders differ from one account to another as she had nothing to say about that.

The HR rep tried to go back and say that I had a history of poor performance instead of addressing the final incident as to why they terminated me.

So what do you think?

I fell I won this one ,but I want know for sure until a few days from now.

I think it looks good. She offered only hearsay testimony and the H.O. nailed her on it.

Let me know Jessica .. it's been a long haul!!

Maybe there was no third part rep because the employer took their UI in-house .. to save money .. maybe the vendor didn't call in their number .. who knows. The fact I know is that you didn't mention any objection on her part to proceed without a rep:))

Sep 18, 2009
Hi Chris I have a quick question ??
by: Jessica Williams

I have arranged special scheduling for the case to take place in mid October due to school and it has been granted which is nice.

Any way, will the new Hearing officer the case file has been sent to read over the file and what the finding of fact was from last time and will the officer know it is a remand?

I just want a fair case.

I don't want the new hearing officer to think just because the board remanded the case there was something done wrong the first time and I should be denied because that is what the Board wanted to happen, and he or she judges the case wholly on that motion or idea.

If thats the case I rather the hearing officer not even know it is a remand case.

Now Of course the Board could have reversed the case all together however there probably was not enough evidence to do so.

Hi Jessica,

I can't cite statute, because I'm not going to research GA statute now, but given that de novo means a "full new hearing" and as if the last hearing didn't happen, I would think that NO, the new hearing officer would not review the transcript or tape of the prior hearing.

Given that the old decision has been vacated .. the decision is null. The new hearing officer cannot or should not be allowed to read the former transcript because it could prejudice the requirement that the decision be impartial.

This would not be the case if a decision was remanded back to "further develop" the facts.

At least, this is what I believe to be true.

There would be an easy way to find out though .. Call the office of the Board of Review.

Sep 13, 2009
by: Anonymous

I fell at this point my employer is as tired over this matter as I am. I believe the HR rep and the companies 3rd party rep were hooping for the Board to just overturn the previous decision and not have to go through another hearing as this is now 7 months in the making wow.
An attorney on my part is not likely due to funds on less I can find a free public rep.

I also fell my employer my not call additional witnesses, and if they do they risk self incrimination. In the first hearing I anticipated my supervisor and office manager to be apart of the hearing. I had nice and effective question for them that I new they would not be able to answer.

I'm sure you know I already have my questions inline as well as my witness. My questions will be simple and straight to the point.

And to be completely honest with you I fell I will win this one agin as the burden is still on my former employer to show intentional neglect and that will not be easy and they know this.

Question in the latter the bored said the case will be sent to the Chief Administrative Hearing Office of the Georgia Department of Labor what is the difference between his education and the other administrative hearing officer education whom are attorneys as well?


Probably not much different. He's the boss. He or She will assign it to a new hearing officer.

Sep 12, 2009
Hi Chris Jessica Williams agin My Case has been Remand.
by: Anonymous

Yes, It's true The Board has remand the case back to the Georgia Department Of Labor for a De novo hearing on the marits of the case. The hearing will be rescheduled with a new hearing officer.

Board of review letter as followed

On appeal, the employer's attorney raised issues of due process. The administrative hearing officer dismissed the employer witness from the hearing after her direct testimony and cross examination. The employer's attorney had no firsthand knowledge of the claimant's separation. The employer was not afforded an opportunity to present rebuttal testimony. We find the employer's contentions are with merit and a new hearing is in order.

Accordingly, on our own motion and as provided by O.C.G.A. SECTION 34-8-221(A), we Remand the file to the chief administrative hearing officer for a de novo hearing before a different hearing officer, upon timely notice to all interested parties, with the issuance of an appropriate decision thereafter.

My question Is this now a new case as if it has never been heard before ? And if so is my employer allowed to submit new evidence and new testimony from different people?
and will the new hearing officer take a look at the old case?

My only concern is now my employer and there 3rd party rep my have the opportunitie to submit a hole new case and dream up a new story.

The companies HR rep didn't have much to ask me before she was dismissed since she had know first hand knowledge Im guessing she was dismissed before I gave my first hand testimony and she was not able to give rebuttal testimony.
Any ways I have my witness still ready to testify if needed.

Im not sure how worried I should be Im just going to state my case like I did last time.
Don't know if I should be worried or get an attorney or what.

The notice of the hearing has yet to be scheduled.
As alway do you have any advice ?

Hi Jessica,

That's what de novo means a whole new hearing which will recreate the record .. just like the last hearing didn't happen.

The first hearing decision has been vacated.

Of course they now have more time to prepare and can bring new witnesses.

If you can afford an attorney, you might consider it .. or just do some research on effective cross examinations and become more acquainted with the rules of procedures and try to anticipate and prepare for anything new the employer might bring.

I personally think the de novo hearing should have just been a remand to add the rebuttal .. or to further develop the record .. but what do I know .. I'm not an attorney:)

Jul 11, 2009
Thank you
by: Anonymous

Thank you very much Chris

A few other people have said that same thing for me to go into law, but I'm just an everyday hard working American as I'm about 3 weeks away from my 24Th birthday and a few months away from graduating college with a medical degree.

How ever i wish more people would take more advantage of knowing there rights as it will only benefit them in the long run and this has been a very long drawn out process and to give you an idea i was terminated on March 5, 2009. We are well into July now

It was not heard for me to grapes and understand the situation, it was the process that was long drawn out and annoying which made it a bit stressful for me.

Jul 11, 2009
Yes the Rep did give a closing statement
by: Anonymous

Yes, my former employers Representative gave a closing statement first and it was not a good closing statement on his part, so that is when he said never mind and recanted is statement and said he has nothing further to say.

Than i gave my closing statement after that the hearing officer proceeded to tell the attorney about what will happen next about both side receiving a letter in the mail in a few days and before she could finish the Representative hung up on the hearing officer.

So yes the rep gave the closing statement ,but i guess the rep felt dumb about what he said
and that's when he recanted.

He hung up towards the very end as i fill he know they lost that on any ways would that be considered a procedural error by the hearing officer and would that be enough for the decision to be overturned or remanded?

Hi Jessica,

I wouldn't think so. The employer pays that company to act as their representative, it certainly doesn't mean the employer gets two closing statements. I think what the HR Coord. should have done when the rep screwed up was to object .. just so there was something in the record for her to point to as the basis of her appeal.

I have been impressed by your understanding of the whole hearing process so far and the great questions you have asked me. I have no doubt in my mind .. you would excel at the job the employer's rep does for a living:)

Send your affirmation letter in and be sure to report back with the board decision.


Jul 11, 2009
Former employers letter to the Board.
by: Anonymous

Although its not final yet i have a strong sense that this case is already
closed and the Administrative Hearing Officers ruling will stand in my favor as i just received my former employers letter to the Board.

The letter was written by my former Human Resources Coordinator whom appeared at the hearing in person along with me. The Appeals letter was not written by the rep whom represented the HR Coordinator at the hearing.

One of the arguments the HR Coordinator is making is that she for the record was not giving the opportunity to give a closing statement. Give me a break, as the hearing officer explained clearly at the beginning how the hearing will proceed. As it relates to Georgia law allowing Representatives from both sides to give a closing statement.

Please correct me if I'm wrong i appeared at the hearing as my own Representative as i had no legal help, so i was allowed a closing statement. The HR Coordinator had the attorney be her representation at that point i beleave she gives up the rights to a closing statement to her rep. The rep gave the closing statement to the hearing officer.

All was recorded and on the record and everything was explained to the HR Coordinator and everyone involved before the hearing began as i fill the board will not consider that.

Everything Else the HR co was contesting was pier hearsay as all was bought up at the hearing like i said before, and its on the record she had no fist hand knowledge over the situation as my former supervisor or the office manager did not appear to give there testimony.

Bottom line my former employer had there chance to Carry out there burden of proof as it was NOT met.


Please let me know about the closing statement part.

Hi Jessica,

I can't give you an opinion about the closing statement because I can't read the transcript, but if I remember correctly .. didn't the employer's rep hang up before the end of the hearing????

And you are right .. they cannot offer additional testimony or information now, but the appeal is based on a perceived procedural error.

Did the guy give one or decline to give one .. on the record?

Jul 10, 2009
Board of Review weighting game
by: Jessica Williams

Hi Chris, well it appears that my former employers third party rep is playing a weighting game at this point. As i have called the Board of review requesting a transcript from the appealing party which is the rep as to what there point of contention is and why they are contesting as there transcript has not been sent yet.

I know they will problem make an argument stating why they fill they didn't get a fair hearing as they will not doubt send the time sensitive information in at the very last minute hoping i will not have my argument/ letter ready in time for it to be considered.

Of course i will send a letter stating why i agree with the administrative hearing officers finding of fact on the record as it relates to Georgia law and request the decision to stand.

The third party rep and i have until next week Friday the 17Th to mail are letters in to all interested parties before the Board to consider the arguments. Now i could request for an extension for up to two weeks after the due date for me to go over the reps transcript if i should need extra time to read there argument and revise my letter if need be, which by the way is all ready to be mailed out.

My question is should i play the weighting game as well or should i go ahead and send my letter in clearly underlining why i fill the decision the hearing officer made is sound with out knowing at this point precisely what the argument will be from the rep?

side note did a little home work on Barnett & associates
as the company states in there out line, they will contest all ruling agents them no matter
what the situation is or the Merits of the case as they will fight for there clients for as long as it takes, yaw yaw yaw and so on.

I fill they are just going thourgh the mostions at the point becaes that is what the employer
pays them to do.

Any advice?

I would just hang tight right now with the letter.

That company is like all the rest .. keep 'em happy. That particular company is out of New York State and has been around for quite a long time and I think they are one of a few of those companies giving the big boy a run for their money right now. There has been some big shake-ups in the industry over the past ten years or so and a great big shake up last summer that has given rise to a whole bunch of start-ups.

I addressed what I think their real value is on my about me page. But trust me .. the more informed a claimant is .. the less impressive they are.

Just hang tight. You have it ready to go .. that's the important part:)

Jul 09, 2009
My former employer is appealing to the board of review.
by: Anonymous

Hi, the appeals letter that came in the mail today says nothing about transcripts being prepaired or why they are even appealing to the board.

The appeals letter dose state that my former employer will need to send a written letter with why they are contesting the decision made by the hearing officer which they have not yet provided. Hummm once more.

If they don't send a letter to me or to the bored with there argument there case will be dismissed.

I noticed that the third party person contesting is not the same guy whom appeared via telephone it says atten to some other guy that works for the law firm don't know what that is about.

Any was i don't fill this will be my problem as i will write to the board why i agree with the decision made all the board needs to do is lesson to the tap as it will tell all.

Most people i have told this to fill i should not worrey about this they fill i will win this one as well.

My former employer can appeal to the suprem court if they would like , but i fill this is there last ditch effort and nothing will come of it.

I will keep you posted

Jul 08, 2009
My former employer is appealing to the board of review.
by: Jessica Williams

HI Chris, Jessica hear again so my former employer has appealed to the board of review . I'm not sure what there argument will be but the bottom line is they change my job back in November of 2008 and did not train me on the change in which i asked for.

Any way the hearing officer made a few clerical errors in her fact finding letter. She got some dates mixed up on when i was written up as it pertained to the change in job in which i never received any tranning on in which i asked for and of course did not get.

My question to you is this something i should worrey my self about? It says in the appeals letter to the board that no additional evidence or testimony is allowed and a letter with the written argument must be mailed to all interested parties for the board to consider the argument and must be received within 10 days from the date of the notice.

It's heard for me to grasp what there argument would be as i have yet to receive a written letter on my former employers position.

Maybe they are contesting the clerical error made by the hearing officer on the mix up on the dates i was written up don't know
but i fill that dose not matter. The bottom line is and the hearing officer grasped in her finding of fact that i did not receive traning which i asked for on more than one occasion so it was not willful neglect and i did my job to the best of my abilities considering i did not receive the traning i asked for.

Do you fill my former employer has a case do you fill they could win based on the mix up on dates by the hearing officer and should i seek some legal advice?

To be honest i don't fill they will win this one i fill they are trying to scare me thinking i will not rise to the occasion, but i will write my letter giving my side of the underlining issue that i was fired over a change to my job that i didn't receive tranning on.

I guess the companies attorney will write his side of my former employers argument.

As always your oppion is always helpful

Hi Jessica,

I won't say that it is always a waste of time to appeal to the board, but I can tell you it is not easy to get a decision reversed or remanded.

The appeal must be based on the existing record. Did the notice of appeal say they were preparing transcripts? States handle these in varying ways and I don't recall what Georgia does exactly.

How about I tell you what that third party might do if it was you appealing .. They would send a letter of affirmation. It would include the reasons they thought the decision was correct .. based upon the record and ask the board to affirm.

Let me know if you get the actual appeal letter or brief.

Jun 24, 2009
Do you think they would Appeal to the bord of review?
by: Jessica Williams

What are the chances of my former employer appealing to the Bord of review?

I got the decision mailed to me in my favor yesterday June 23rd the hearing officer
made the decision on Monday June, 22 my former employer has until July, 7Th to appeal i don't fill they will, but lets say their dumber than i think and they decide to give it a try.

What would be there angle you know there point of contention.

The hearing officers fact finding statement was i did the best i could under the circumstance that i did not receive training as i repeatedly asked for assistants and did not receive it. She went on to say the employer did not sustain there burden of proof that it was poor performance by misconduct or neglect.

I don't fill they will contest, but i have heard they have appealed to the Bord of review before in the past.

My former employer really hates paying out unemployment

Any comments?

Hi Jessica,

When an employer has a third party admin handling their unemployment .. it's easy enough for them to appeal to the board .. and it works .. especially if an employer couldn't attend and they want to reopen the hearing. Happens all the time .. so if anyone reads this and the employer didn't show to the hearing .. don't start counting your money yet!!!

But when they were there .. the appeal needs to be based on a procedural error of the hearing officer. A Board of review appeal is not very similar to a lower level appeal .. where all you have to do is basically say I appeal because I disagree. Appeals to the Board to get a lower level hearing decision reversed or remanded requires some legal knowledge of the hearing procedures and rules the hearing officer must follow. And except for a state or two .. they cannot present additional evidence or testimony.

The appeal must be based on the record .. or the transcript of the hearing and errors by the hearing officer in procedure or application of the rules. Such as allowing hearsay testimony to carry more weight than direct testimony. Possibly not allowing evidence in that they felt was relevant .. etc.

Stop worrying for now and pay your bills:) If it ever comes to an overpayment .. I can direct you to the information you need to know.

I'm just kidding .. you're question is insightful and shows you think ahead .. Good Quality to have.

Jun 24, 2009
Ahhhh Sweet Victory!!!!
by: Chris - webmaster:)

I had no doubts:)

Didn't recognize the reps name, but the company is one of the BIG ones. And employers pay for reps like that .. bet you dollars to doughnuts he tried to talk the employer out of it:)

Jun 24, 2009
And the verdict is.
by: Jessica Williams

Jessica Williams here , i would like to say thank you for your support and opinion on this matter.

Now that the hearing is over i can give you a
bit more details. My former employers so called attorney works for Barnett Associates INC
located in Garden City NY his name is Kelly Landolph.


Right now i have 14 weeks of past payments coming my way as that will help me get caught up on bills and my main focus is to stay focused on school as I'm a college student with 7 months left before i graduate and I'm still looking for a full time job as well.

The Hearing Officer could see right through my former employers weak case as i did i think when the attorney hung up on the hearing officer while she was talking to him that was the last straw LOL !!!!!

Thanks Chris there is not many blogs out there like yours keep up the good work.

Jun 20, 2009
Winning an unemployment hearing
by: Chris - webmaster:)

Hi J:)

You totally impress me!!!

You might all notice I don't have some "downloadable" hearing preparation PDF. That's because I feel that to do a service to everyone .. I'd have to have one for each individual state and then I would want everyone to know that preparing for an unemployment hearing is really knowing and understanding the details of their individual circumstances and applying the basic principals to that situation.

I feel VERY confident for you because you grasped the underlying principle of what the employer had to prove and you understood and provided the necessary information the hearing officer needed to know to find in your favor.

Trust me, the employer's rep was not an attorney, but a lay rep. I'd even bet if you told us the name of the company the hearing notice was sent to .. I'd recognize it and I might even recognize the name of the rep:)

He knew the case was a loser from the gitgo and was just doing what he has to do to perform the requirements of the job:)


Jun 20, 2009
Continuation of Hearing for Poor Performance
by: J. Williams

Hello J Williams again i appreciate you taking the time to read and give your view on my situation.

In the first hearing my former employers HR Coordinator gave her testimony which was largely hearsay based with out having my former supervisor or the office manager available at the hearing. The HR Coordinator submitting the paper work you know write ups and warnings about my performance. The HR Coordinator testified and submitted her evidence. At that point she is not allowed to bring any additional evidence or witness into the hearing as explained to her by the hearing officer. So that was not a problem for me as my hearing was rescheduled.

My hearing part 2 was yesterday It was just the HR Coordinator again and the company's
so called Attorney, me and my witness.

It was time for the HR Coordinator and the company's attorney to cross examine me
and what do you know they had no questions to ask me as i thought they would be firing
questions at me like bullets, but no they had nothing to say hummmm.

Anyways the Hearing Officer took my testimony about the recent change that accord in my job with out me receiving training or help and etc. The hearing officer felt that the testimony of my witness would not be necessary since she already head my first hand testimony of the situation as my former employers HR Coordinator had absolutely no first hand knowledge.

i most say i felt good about my testimony
I was very calm and clear minded knowing my former employer had virtually no case.

The Hearing officer still had to overrule my former employers attorney on some occasions , but it was not as bad as last time. The Hearing Officer did not allow the HR Coordinator to give a closing statement but she did allow the company's attorney to and i most say it was a lowzey one He stated in a rude muffled manner " the climate was discharged for failing to preform job for which hired so she should be disqualified for benefits"i asked the hearing officer if she would ask him to repeat his statement and she asked the attorney to speak clearly and repeat his statement, you know i just wanted to make sure i heard him right because his statement was as if he payed no attention in the hearing and what was being contested. At that point the attorney said never mind i have nothing to say.

I gave my closing statement you know i performed job to the best of my abilities as for the change that accrued i did my best under the circumstance that i was never trained etc.

At that point The Hearing Officer proceeded to ask the attorney a question and before she could do so he hung up as she was talking to him yes this guy was a character and a rude one at that.

Anyways the Hearing Officer said i will get a decision mailed to me in a few days.
Wish me luck as i pray it's in my favor.

Your opinion would be appreciated and i will let you know the outcome.
thank you.

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