What is the name of your state (only U.S. law)? I live in California presently but my unemployment action is in Nevada. If this is not the right topic for this please excuse the post.
Please find attached my notice of appeal for my Nevada Unemployment Claim, I have heard nothing and its been at lease a month can you guys tell me if I have a snowballs chance in hell of winning??
NOTICE OF APPEAL
Re: Case number R-09-A-18439
I herein appeal the determination in the above entitled case, this appeal will be based upon all admitted evidence, documentary, and/or oral and is incorporated by reference as though set forth in full.
Ground One: The determination was based upon the employers attendance policy (see DECISION OF THE REFEREE, hereinafter “DOTR” page 3, also see exhibit 8a, 8b ) However, the Evidence admitted at the hearing shows that:
a.) Appellant did in fact call the employer according to the stated policy (see DOTR, page 1, paragraph 5)
b.) After the initial call appellant was under no obligation to make any further calls to the employer as he was placed on Investigative Suspension, and while on said suspension appellant was prevented from reporting to work due to the company’s action, and not required to call in (see verbal testimony from employers representative Kelvin Manzanares, also see EXHIBIT 7)
Argument in support of Ground one: On page 3, paragraph 2 of the DOTR the Referee correctly finds that on my next scheduled work day I did call in
2
accordance with Company policy, however the referee specifically found that I was required to call on subsequent days, and since substantial evidence supported a finding that appellant made no such calls, the referee found that appellant violated company policy and therefore was not entitled to benefits.
There are two points of contention within this argument:
1.) Firstly was the appellant required to make any additional calls to his employer after the first call given the fact that he had been placed on Investigative Suspension? In exhibit 7 a letter dated July 9, 2009, the company plainly states that on 06/15/09 the appellant was placed on investigative suspension, furthermore under direct examination Mr. Manzanares stated that there is no requirement for an employee on investigation suspension to call in to work. According to the evidence found to be true by the Referee the appellant’s last day at work was 06/14/09 thus, if the appellant was placed on investigative suspension on 06/15/09 there couldn’t have been any obligation on the part of the appellant to call in to work. Had the company taken the appellant off investigative suspension at any point after 06/15/09, the appellant would have been obligated to call in and fully comply with the requirements of the company’s’ attendance policy, however, the company never took appellant off suspension, they instead simply terminated appellants employment
2.) Secondly, assuming the argument that there was some failure to call on appellants part, or that appellants actions where somehow defective, the company by their actions in “effort to hold your employment status” (see exhibit 7) have condoned the appellants actions and are prohibited from firing the appellant based on that same set of facts.(see LEE V. EMPLOYMENT SECURITY DEPARTMENT, 709 P.2d 1016 (1985) [Supreme Court of Nevada]
Conclusion: In conclusion the record will reflect that the appellant complied fully with the company’s attendance policy in terms of calling in. Appellant had no duty to call after the first day due to the fact he was placed on Investigative suspension. The company cannot use the same set of facts to terminate appellant when they have approved or condoned the claimed misconduct.
3
Respectfully submitted,
Please find attached my notice of appeal for my Nevada Unemployment Claim, I have heard nothing and its been at lease a month can you guys tell me if I have a snowballs chance in hell of winning??
NOTICE OF APPEAL
Re: Case number R-09-A-18439
I herein appeal the determination in the above entitled case, this appeal will be based upon all admitted evidence, documentary, and/or oral and is incorporated by reference as though set forth in full.
Ground One: The determination was based upon the employers attendance policy (see DECISION OF THE REFEREE, hereinafter “DOTR” page 3, also see exhibit 8a, 8b ) However, the Evidence admitted at the hearing shows that:
a.) Appellant did in fact call the employer according to the stated policy (see DOTR, page 1, paragraph 5)
b.) After the initial call appellant was under no obligation to make any further calls to the employer as he was placed on Investigative Suspension, and while on said suspension appellant was prevented from reporting to work due to the company’s action, and not required to call in (see verbal testimony from employers representative Kelvin Manzanares, also see EXHIBIT 7)
Argument in support of Ground one: On page 3, paragraph 2 of the DOTR the Referee correctly finds that on my next scheduled work day I did call in
2
accordance with Company policy, however the referee specifically found that I was required to call on subsequent days, and since substantial evidence supported a finding that appellant made no such calls, the referee found that appellant violated company policy and therefore was not entitled to benefits.
There are two points of contention within this argument:
1.) Firstly was the appellant required to make any additional calls to his employer after the first call given the fact that he had been placed on Investigative Suspension? In exhibit 7 a letter dated July 9, 2009, the company plainly states that on 06/15/09 the appellant was placed on investigative suspension, furthermore under direct examination Mr. Manzanares stated that there is no requirement for an employee on investigation suspension to call in to work. According to the evidence found to be true by the Referee the appellant’s last day at work was 06/14/09 thus, if the appellant was placed on investigative suspension on 06/15/09 there couldn’t have been any obligation on the part of the appellant to call in to work. Had the company taken the appellant off investigative suspension at any point after 06/15/09, the appellant would have been obligated to call in and fully comply with the requirements of the company’s’ attendance policy, however, the company never took appellant off suspension, they instead simply terminated appellants employment
2.) Secondly, assuming the argument that there was some failure to call on appellants part, or that appellants actions where somehow defective, the company by their actions in “effort to hold your employment status” (see exhibit 7) have condoned the appellants actions and are prohibited from firing the appellant based on that same set of facts.(see LEE V. EMPLOYMENT SECURITY DEPARTMENT, 709 P.2d 1016 (1985) [Supreme Court of Nevada]
Conclusion: In conclusion the record will reflect that the appellant complied fully with the company’s attendance policy in terms of calling in. Appellant had no duty to call after the first day due to the fact he was placed on Investigative suspension. The company cannot use the same set of facts to terminate appellant when they have approved or condoned the claimed misconduct.
3
Respectfully submitted,