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Who has the burden of proof?

by Patrick

Who has the burden of proof if my claim was denied under(1256)?

A security guard claimed I threatened him, which never happened. My word against his word. What are my chances of a reversal?

Hi Patrick,

You are forcing me to assume facts.

1. That you were fired and did not quit, in which case the burden of proof to prove misconduct belongs to the employer.

2. That the employer cannot prove misconduct.

When it comes to one person's word against another, credibility is crucial .. and direct testimony vs. hearsay testimony matters to the employer's ability to prove misconduct.

It is something I would definitely recommend appealing. Reversal is a real possibility, if you are able to represent yourself well.

In the absence of any documentation, credibility is that intangible element which means your story is the story accepted as the truth.

As long as the truth allows for a finding of no misconduct .. you'll get the reversal.

Documentation adds weight to verbal testimony and removes the need to make a decision on credibility alone. When you see words like "preponderance" in a decision .. there was probably documentation in addition to testimony.

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Dec 15, 2009
All Shook Up & Broke
by: Patrick

No I didn't quit. No he can't prove the threat that never happened. I was told that there's a video of this so called incident. If there is then I would be exonerated. Should I have that subpeoned for my hearing or wait to see if my x-employer produces it. Also Chris,I've read about sending EDD continuing claim forms waiting for my appeal.During my phone interview the lady said no. Could you explain?

Hi Patrick,

If the employer told you they were firing you because there was video .. and you are certain there is not then that would be central to your case. If you wait to see if your employer produces it .. it would be too late to subpoena it. When you get your hearing notice, read the pamphlet over that comes with it. It will tell you how to subpoena things.

No, I cannot explain why someone at the EDD told you there was not need to continue to file claims until you get a hearing scheduled.

To be eligible for all the weeks you will have to wait for the hearing .. you have to file claims.

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