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I won my appeal for Texas unemployment benefits and now the employer is appealing

by Wanda
(Texas, USA)

I'm not sure what to do or how to prepare for the appeal hearing. The first hearing the employer did not show up for (it was a phone hearing) the unemployment rep proceeded without the employer - spoke to my witness and I was awarded unemployment - I get a notification via mail that the employer has appealed the decision and I have another telephone hearing to determine first "if the petitioner (employer) had good cause for failing to appear at the previous hearing" and then if unemployment benefits were justly or unjustly given to me. my questions are: - Will the testimony my witness gave under oath at the first hearing stand or do I need to ask her to participate again? Should I have people write charter letters for me and submit those? ANY help would be greatly appreciated.





Hi Wanda,

A little more history would be helpful to me.

1. Who appealed the claim determination originally?

2. Was it a quit, or a discharge?

3. Do you know if the employer (ER), or the ER's representative requested a postponement prior to the hearing that might of been denied?

4. Did the ER's representative put any request for postponement on the record during the hearing?

5. Did the board remand this back down to the tribunal for an "additional" hearing in front of the same hearing officer, or did they vacate the hearing decision and order a new hearing? (This is important for the question about having your witness there again).

6. Where was this "employer rep" from? Doesn't make sense to me that a rep with no first hand knowledge who had also requested a ppd. prior to the hearing would even appear (sort of like waiving a right), but instead, just go with the board appeal to an unfavorable hearing decision to get it remanded.

And you'll have to tell me what a charter letter is? But generally, I wouldn't tell someone written letters, or statements without having the person who wrote a statement available for questioning .. is a good way to roll at a hearing.

Chris

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Oct 18, 2014
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I won my appeal for Texas unemployment benefits and now the employer is appealing - responses
by: Wanda

(Chris's answers to Wanda are emphasized below)

ok. It 's the same case/with the same hearing officer.

What is Tx H.O?

Sorry, an H.O. is a hearing officer.



I did not receive a transcript of the first hearing. Should I have?

No not likely. A transcript would not be standard operating procedure for an additional hearing. However, it's something anyone needing to write a good argument for a board level appeal would want to have in hand since the focus of a board appeal is not on arguing facts again, but pointing out H.O. errors and defects with regard to the facts presented and the rules of procedure for TWC administrative law hearings in Texas they must abide by.

A big part of any H.O.'s job is they are mandated to protect both parties rights to due process during the hearing, but sometimes .. personal bias can leak out when they allow and possibly rely on hearsay more heavily even if a party objects to it. Making objections is how you are allowed to protect your OWN rights to due process and they can be important to a board of review who may view a party's silence .. as waiving a right.




My hearing is Thursday. Would you please give me some examples of "object on hearsay" - verbiage - I do not want to come across arrogant or ignorant.

I think the best thing would be to read the hearsay rule at the link above. But in case someone later comes along and read this here it is. Texas Unemployment's Hearsay Rule


I didn't mean to get caught up in the minutia of "rude." I apologize. I have lived long enough to know the devil is in the details and I don't want to/can't lose.

No need to apologize because I keep trying to make the point that semantics can sometimes be the devil in the details that hurt, rather than help.


Should there be a doctor's note regarding the laryngitis and bronchitis? should I ask for one?
The precedent the hearing officer used the first time was appeal no 2114-ca-77 - "...no evidence to support either of the allegations of misconduct" and appeal no 21386*at(affirmed by 656-ca-65) "testimony under oath is more convincing than written statements of testimony based on hearsay"


This is a very good point Wanda. It makes me think you might of done this before! Yes, you should be given the opportunity to ask if the direct witness who was sick has a dr. note to prove their non-appearance was with good cause .. and please don't ask me why I think this is a good idea Let's just say it's because of first hand experience:)

Thanks again Chris - I am very grateful.

Well, that makes two of us. I'm grateful because it turns out, you've asked me some questions about preparing to win and unemployment appeal hearing.

And when I think about how to prepare .. I think about winning an appeal hearing in terms of how you must not only weight testimony with evidence and witnesses when possible, but think about what the other party might be doing to win as well and prepare for that as well .. in terms of weaknesses.

And don't forget to read the exceptions to the hearsay rule. Hearsay, is for the most part, supposed to be procedurally given less weight than direct knowledge, when the one presiding decides if the burden was met to prove cause to a "preponderance" rather than a shadow of a doubt, the latter being much more objective.

"I object, I think that was hearsay", isn't about whether you sound arrogant, or ignorant .. it's about making sure you get an objection on the record in case you need to point to that moment if you lose and appeal to the board.

And appeals to the board your appeal are focused on something rather than the case facts which they don't want you to try to relitigate in most states.

"See here board", the hearing officer overruled my objection to hearsay and their decision would be illogical without the ability to pin their reasoning and conclusions to hearsay testimony.




Oct 17, 2014
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I won my appeal for Texas unemployment benefits and now the employer is appealing - responses
by: Wanda

I've added my comments after your questions Wanda.



This is in front of the same hearing officer. The case is the same.
Benefits have not stopped.

This hearing is then additional, much like a continued hearing, if the party with the burden (the party that generally gets to go first with their story) took too long the first go around.

The manager called the complainant 10 days after the incident and asked him questions. (Is this first hand knowledge)?

Depends. I'd think if the employer submitted a report , or questionnaire the manager filled out with regard to that conversation as evidence and the manager's testimony is confined to the report, it would probably be allowed into the record as direct testimony .. which would also be subject to the TX H.O. and you cross examining the manager about. If they say anything that isn't documented .. then you know to object on hearsay on the record .. right?


I received a "final warning Memorandum" 60 days before termination.
"Rude" is not in the employee hand book.

The written support the ER refers to reads: Insubordination, failure to follow instructions - serious breach of acceptable behavior - Any other acts which, by their nature and impact, severely limit your or any other employee's ability to perform the essential elements of the job, and finally job performance that is unacceptable.

You're sort of getting hung up on one word, if you think an employer rule has to include the word "rude" to define "unacceptable behavior" .. don't you think?

The only additional information included in this packet was a letter from the outsourcing company requesting the appeal because "the key witness for the employer was ill with laryngitis and bronchitis" and "there are several facts the claimant has presented which she has left out details, we would like to present".

"the key witness for the employer was ill with laryngitis and bronchitis" Ahhhh, I'd expect the employer to get past the non-appearance issue with this because illness, let alone an illness causing an inability to speak for a phone hearing is good cause to postpone and reopen the hearing even after a decision is issued.

My witness was a witness to the members behavior and what he said regarding the incident after the incident - the incident happened at a satellite location - member complained at the main location.


Yessiree. You need your witness to appear again. And might I remind you that there is this possibility, that even if the customer was a real jackass, that alone may not absolve you of the TWC's idea of what guilt of work related misconduct is.

Thank you so much Chris -

You are very welcome. I want to thank your for communicating well. It makes a general answer easier and makes me feel easier, when I get the impression someone is actually thinking in critical terms about their case on the other end.

And have you gone to the TX precedent and policy manual Past decisions that interpret what a law actually is supposed to mean make it easier to see what you should be guarding against, or see alternative ways to to present and explain that can give you an edge to lift a case presentation above the average claimants .. which can be the very cause in a lot of cases .. for losing.


PS sorry for the mess on the UI law page, I'm still deciding how I'm going to fix it.

Chris

Oct 16, 2014
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Didn't you receive anything from the TWC board of review?
by: Chris

# 5 is sort of important to know Wanda, at least for me to go further and decide whether I would feel like my witness appearing again is necessary, or not.

If you have received your new hearing packet and if TX still does things the same way from the last time a hearing packet was shared with me, the new packet should contain the entire first hearing notice and all the docs that came with it, as well as any new stuff that prompted the new hearing. (TX uses both front and back of each page). Look all the way through that packet to find out if this is a new hearing in front of a different hearing officer, or an additional hearing with everything from the first hearing still a part of the record.

If you were originally denied benefits and they had vacated the decision a new, or de novo hearing would also mean benefits should of been stopped until the new hearing decision is made.

Per google a notarized written statement is ..

af·fi·da·vit
ˌafəˈdāvit/
nounLAW
a written statement confirmed by oath or affirmation, for use as evidence in court.

They might go to establish your credibility, but they won't do much to prove you were not rude in said instance you were discharged for .. which you should know is the employer's burden to prove and therefore, why the cost control company has gotten this remanded for their client.

Does the manager who would be the employer witness have first hand knowledge of the incident that caused your discharge?

Can the employer prove through written warnings this wasn't the first time you were rude to a customer and that prior warnings also made you aware further occurrences would/could result in discharge. (This is why a state asks "were you made aware your job was in jeopardy.)

How is the employer's rule about being rude framed in the employee handbook? (People often forget to read, or simply don't think to read the very rule they were discharged for to see if part of their argument might be in the rule).

Does the employer have a witness with actual first hand (direct) knowledge of the incident of rudeness that caused your discharge, or is it a manager who is only offering hearsay testimony (procedurally, hearsay is supposed to be weighted less and is subject to something I would object to .. if it were me with benefits on the line).

There's plenty more I would have to say about this all Wanda, but the bottom line .. is if I didn't know, or wasn't sure about what someone tried to explain .. who doesn't know the detatils (ME), I'd prepare for this next hearing .. as if it were the first hearing?

And that brings me to the fact, I do not know what your witness testified to at the first hearing .. was she a witness to the incident that caused your discharge?

Remember .. this is the ER's burden to prove what happened to fire you was in fact misconduct ..

Oct 16, 2014
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responding to questions
by: Wanda

1) - I originally appealed the claim determination - after a brief interview with an unemployment rep I was initially denied - I appealed. The "witness" for my employer was not available and did not participate in the first telephone hearing.
2) I was fired for being rude
3) I do not know if the ER requested a postponement prior to the hearing - I found out about the postponement request at the beginning of the hearing - so I assume this made it "on the record" - (but you know what they say about assume - guidance please.
5) I'm not sure how to answer this question - The hearing officer told the rep that they were not allowed to postpone because I requested the hearing and the hearing officer hung up with the rep and continued the hearing without the ER present.
6) The ER uses an outsourcing service to manage their HR - this company is located in Florida - I worked in Plano Texas and the "witness" was my manager.
7) I was fired for being rude to a member - I am wondering if I had, for lack of a better term, charter letter (notarized) from current employees, current members stating how effective/good/Conscientiousness I was regarding my work would help with my case.
Thank you so much Chris for taking my question - I really appreciate your help.

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