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Termination for "Deliberate Misconduct" DUA hearing

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Cambridge1

Junior Member
What is the name of your state (only U.S. law)? Massachusetts

I was terminated from my position at a Union staffed media job for an omission of a piece of boilerplate on a press release. They claimed it was "Deliberate misconduct" because my boss said we had a telephone conversation in which I told him that I sent out the material correctly, and that me telling him that was a lie. That conversation never happened in the way he described, and I appealed the decision through my Union.

My employer has been stalling with the union for almost four months now. First taking a month to send them my employee records, then taking another almost two months to respond to their request for a hearing (they still haven't responded). The main issue is that the employer is trying to break the union through prolonged contract negotiations etc. and both the union and my employer aren't really worried about my case. In any case, my union is pretty weak and only really affiliated with my former place of work (not a larger organization).

To top it off, before I was fired, I was in a department that shrunk from three people, to two and then just to me. Now that I have been fired, they have eliminated the department completely. Is there any argument here for a "de-facto layoff"? Is that a thing? I would be grateful for any help.
 


eerelations

Senior Member
If you weren't unionized, this would have been a perfectly legal termination. Since you were unionized at the time of your termination, your only recourse is through the union.

A "de-facto layoff" is not a thing. The only reason you might want your termination categorized as a layoff is so that you would have easier access to UI benefits.
 

Cambridge1

Junior Member
Clarification

Sorry I noticed I left out the essence of the Question, this is about a DUA Hearing where I am attempting to obtain UI. They(edit: my employer) have been unresponsive to my union and the "termination"(edit: "termination for misconduct") was more like a layoff in that they eliminated my position at the same time. I was wondering if I could argue that point at the hearing and if it would fly, not that I was "wrongfully terminated" after all Mass is a no fault state.
 
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cbg

I'm a Northern Girl
Any time your employment ends it is a termination. If you quit it is a voluntary termination. If your employer initiates it, it is an involuntary termination. Layoffs, firings, RIF's, and yes, even quits, are all terminations.
 

commentator

Senior Member
So where are you on your unemployment insurance hearing process?

Have you filed, has there been an initial decision, has there been a hearing yet? Unions do nothing for you related to unemployment insurance. A grievance or process through the union would be trying to get your job back for you. Getting approved for unemployment has nothing to do with your union or what they can or can't do for you. I do not understand where you say that the unemployment system (or someone) has been "unresponsive to your union." Your union shouldn't be involved in unemployment, this is between you and the employer.

So you were terminated for misconduct because you made an error, we assume this is the first time you had made such an error, but your boss claims to the unemployment system that it was deliberate misconduct because you and he had a conversation where you said that you had done whatever it was you were supposed to do, when you actually hadn't done it.
So the misconduct was telling him the lie? That's a very questionable argument, unless there's much more documentation.

And in an unemployment hearing, it should be that each of your stories has the same weight, in other words if you said this was said, and he says this other was said, then unless he has some other proof that you lied, or a witness who overheard your conversation with him, it would be tough to say he was believable.

You can certainly point out, in your unemployment hearing, that you were not actually terminated for misconduct, that you were terminated because your employer needed to do what he did, which was downsize your department, and eliminate one of the positions. He then used the trumped up "misconduct" argument to say he fired you for a valid misconduct reason so he would not have to pay higher taxes for your unemployment benefits.

But you've got to explain a little more clearly where you are in the unemployment process before we can tell much.
 

Cambridge1

Junior Member
Re:

Right now I am going into my hearing in a couple days. Sorry, clarification on the clarification. My employer has been unresponsive to the Union, not the UI office. As you said, the union had nothing to do with the UI.

What I am trying to argue is that they were eliminating my department and trumped up this issue in order to save on taxes/insurance. My evidence being that they eliminated my position and are stalling on my union requests.

Is this a valid argument? Does it have any chance of sticking? My approach is going to be 1)Poke holes in the trumped up "incident" 2) Point out that my position was eliminated 3) Point out that my Union request is not being dealt with in a timely manner (it's been almost 4 months).
 

commentator

Senior Member
Eliminate the union issue. Totally. It has nothing to do with the unemployment hearing, and will not be an issue they will be consider. So bringing it up does nothing to help you.

Re-read the initial decision, which should say something like, "Claim was denied, employee was terminated for deliberate misconduct when......" This is the only issue that will be considered during this hearing. This one issue.

Whether the company had a valid misconduct reason to terminate you. Misconduct means you did something deliberately that either (1) you knew was against the rules, had even received warnings about it and knew it would probably lead to your being terminated if you did it, or (2) was something so bad that anybody reasonable would have known that doing it, even once, was wrong. Setting the building on fire so you could be off the rest of the day is an example of this type of misconduct.

Making a mistake, unless it was due to your inattention, failure to follow the correct procedures or your deliberate goofing off is not considered misconduct.

If you had lied to your employer when he specifically asked you, "Did you remember to put the boilerplate on the press release?" may be construed as misconduct if you did lie to him, knowing fully that you had deliberately not done it.

Tell your side of it. Exactly, clearly. What happened. To begin with, I had worked for this employer for xxx number of years. I had received successful performance reviews, I had had no previous write ups for anything, particularly not for....(whatever it was you were supposed to have done.) On the morning of...and then start off and detail exactly what happened the day you were terminated. If you made a mistake, admit you did it, tell when you first were aware of it. Emphasize that you did not do anything deliberate to cause the operation to go badly. Emphasize that you did NOT talk to the employer on the phone and tell him that you had done this thing that you didn't do. Offer your side of exactly what happened as far as what was said to you by the employer when the mistake was discovered, and exactly what was said to you when you were terminated. If you have any letters or papers that you were given, it wouldn't be a bad idea to have those.

Say clearly that you did NOT deliberately do anything to cause the operation to malfunction. Say that you always did your job to the best of your abilities. Say that you did not want to lose your job and that you were doing your best so that you could keep your job. Point out that as soon as you were gone, your position was eliminated.

Do not whine about how bad they treated you or tell the hearing officer what a jerk and a liar your boss is, tell how much hardship you are experiencing since you have lost your job or bring in extraneous stuff about your union complaint and how they are not cooperating with it. Be businesslike, formal, and pay careful attention. Listen carefully to any questions the hearing office may ask you. You may be allowed to ask the employer questions.
 

cbg

I'm a Northern Girl
I can verify that in MA, he will be allowed to ask his employer questions. Likewise, the employer will be allowed to ask him questions.
 

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