Can I still get Unemployment if fired for Unsatisfactory Performance

[NickL30]

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

I am in Massachusetts but will be reopening a previous claim in CT when I lived previous.

I was recently fired this week after working at a new job for only 6 months.

The reason was 'unsatisfactory job performance'.

My boss gave me a written warning two weeks ago that was vague and just had things like disorganization, bad time management etc..

At the end of that document it said --- 'we will evaluate your performance over the next couple weeks prior to the end of the introductory period to determine if further corrective action is necessary'.

I stayed late and put in every effort. On Monday I was fired -- my boss said in the HR office that ' we reviewed your progress and even though you made some progress & improvement we don't feel that you are a fit for this position so we are ending your employment'. That was it. HR said that I could apply for unemployment but the reason given would be 'unsatisfactory performance' and the unemployment office would make the decision. No specific rule was broken as determined by definition of misconduct.

I filed by phone and was told that a fact finder would make a decision but not until the end of december and that is just based on a written statement that I and the employer will have sent prior to that time.

Do I have a chance of receiving benefits based on the above?

 

[cbg]

Based on the above yes, you have a good chance. Unsatisfactory performance is rarely a disqualifier for benefits unless the employer has pretty strong proof that you could have performed to standard and deliberately chose not to.

 

[commentator]

In order to keep you from receiving benefits, the employer has to have terminated you for a "misconduct" reason." Performance issues are rarely misconduct, very hard to prove as misconduct, and in this actual case, it doesn't sound as though even the employer is saying you committed performance misconduct.

So yes, I'd say that if you keep your ducks in a row, you'd have a pretty good chance of getting approved for benefits, though it will be a slow process, given the current economy. What you do is be sure that you obtain the certification forms from Connecticut to file for your weeks, and be doing this,even though you are not receiving checks. If the claim is approved, you'll be back paid for each week you have certified for during this time.

Though you would be drawing from another claim which is less than a year old, your present employer is your separating employer, and your reason for being terminated at this job will determine your eligibility for benefits. When your benefit year expires, you'll be filing for a new claim, and at that point, these wages from this current employer will be folded in with others to make up your next claim.

They'll take a statement from you. The most important question they'll ask you is "Did you try to do this job to the best of your abilities?"

Then they'll take a statement from the employer. If you showed up and did your best, even, according to them, made some improvements, yet were still not able to meet their standards, the u.i. system will not consider that misconduct. Being untalented, or not able to catch on though you have made a good faith effort is not misconduct.

To keep you from drawing they'd have to prove you had the capability to do the job, had been trained to do the job, and then decided to goof off, or screw up deliberately by your own decision.

The first decision, "initial" decision will be issued after the ajudicator has talked to both parties. Then either party can appeal this decision, which would lead to a hearing. If you are approved inthe first decision, and the employer decides they don't have enough of a chance to appeal, you're good from that point. If you lose, are denied, then you would ask for a hearing.

There are no guarantees, but it sounds like you have a fairly good chance here, IMHO.

 

[NickL30]

Based on the above yes, you have a good chance. Unsatisfactory performance is rarely a disqualifier for benefits unless the employer has pretty strong proof that you could have performed to standard and deliberately chose not to.

I should have mentioned that I signed a written warning two weeks prior that said that receiving this only means your are in receipt of it.

It didn't have any specific things like -- attendance, use of phone or internet for example. At the end it mentioned the 'introductory period would be concluding in a couple of weeks' and they would determine if 'further corrective action is necessary'.

But doesn't the above (deliberately chose not to) become a 'he said, you said thing')??

I need these benefits since likely I am unemployable in this industry due to two consecutive terminations at my age of 33 and will need to retrain for an entirely different career. Last time November of 2008, boss said he needed to cut staff but said that they would not contest unemployment.

 

[NickL30]

Based on the above yes, you have a good chance. Unsatisfactory performance is rarely a disqualifier for benefits unless the employer has pretty strong proof that you could have performed to standard and deliberately chose not to.

One other question --

Should I make an appointment with an employment attorney for a consultation at least or find someone who can represent me for a flat rate and guide me thru the process??

Like I said, given my less than stellar work history and that it may take months for the whole process if my employer contests and it becomes a drawn out --- they said, you said thing.

 

[cbg]

No, when I'm talking about proof that you could have performed to standard and chose not to, I"m talking about the employer being able to pull out previous performance reviews in which you WERE performing to standard, or satisfactorily completed training which you then proceded to ignore. I'm not talking about a he-said, she-said. That would not be sufficient proof for denial of benefits.

If you're looking for someone to carve something in stone, you're in the wrong place. Only the state can give you a guarantee, and even they won't do so until after you have already filed or reopened the claim and they have completed their investigation. But if you are looking for the opinion of someone who has some experience with MA and CT unemployment, yes, it is my opinion that you have a good chance of receiving benefits. If that is not enough for you, I don't know how else to help.

 

[commentator]

You haven't been fired twice in two years. You were "laid off due to lack of work" last year. They cut staff at your old job sounds like due to the economy. This is not the same thing as being fired. Being fired is a performance issue or a misconduct issue. Either way, unemployment isn't going to consider your previous work history, just this one issue.

The reason this new employer did not pick you up during your probationary period may have been partly economy driven too. But either way, you really should look into re-training while you are receiving your unemployment. It never hurts to increase your personal qualifications. There is also a lot of retraining available through the Career systems in the states that is covered if you are on unemployment insurance.

Yes, all unemployment is "he said, she said" to some extent. But it is weighed and balanced according to the evidence we have on hand. In other words, if your employer says, when the office contacts him, " We fired him for smoking pot on the job, we have this on tape" then you would be recontacted before the initial decision is made to deal with this issue, and believe me, things could take a bit longer.

If you deliberately chose not to improve your performance by spending your day playing on the internet or asleep at your desk, this would be a definite misconduct performance issue. Coming in early, staying late, trying very hard to resolve the issues and do a good job is pretty easy to spot. If you did this sort of thing, and it still didn't work out, then you're in pretty good shape.

If both of you are saying "poor performance during probationary period" and you're saying "but I did my best," it shouldn't be much of a big case or too hard to straighten out and get a reasonable decision on. Retaining an attorney would not change anything.

 

[ecmst12]

You don't need a lawyer to file for unemployment.