any wrong doing here?

[taddles]

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

would a person have a case against a former employer if they were let go in a registered letter by owner for one reason, (poor work performance)
then told lack of work by manager when picking up personal belongings and after applying and receiving unemployment come to find it is being appealed by the ex-employer stating "willful misconduct" can they be held for liable for this accusation that is untrue?

this could prove to be detrimental in securing gainful employment in the future if unable to use this place of employment that was held for 3+ years as a reference when seeking a new job.

 

[pattytx]

Not impossible, but unlikely. "Willful misconduct" is subjective.

 

[commentator]

Right, they can define willful misconduct in any way known to man. When you filed for unemployment, did you submit what they had given you (the registered letter?) And I hope you emphasized that you always did the job to the best of your ability, that you had not been told that your performance was unacceptable, and that you tried to keep your job.

They'll have to document and explain exactly what willful misconduct they're talking about, and if it is made up, your testimony will be much more believable than theirs. In terms of performance issues, willful misconduct would be when you knew how to do the job, were capable of doing the job, and deliberately chose to do a bad job at it.

What they say in unemployment hearings has NOTHING to do with the reference they may give you. It is never public knowledge. But if they try to say you committed wilful misconduct, and it isn't so, and you are approved for benefits, it does look better and you may want to emphasize to future employers that you worked there for over three years and were approved for unemployment benefits when you left.

As for "having a case against them" you can't sue them for saying whatever they say was the reason for discharge in an unemployment hearing. If they slander you willfully in future references, this may turn out to be another issue.

 

[taddles]

thank you.
i did not submit the letter at the time of filing since i followed my managers instructions and declaired lack of work (as they are replacing my position only part time) but when i just filled out claimant question form, i sent copy of the letter and my review from 07 and 08, telling them i was unable to provide 09 which was similar ( i alway got the maximum monetary raise offered )since it was mising from my desk when i picked up belongings. i asked my manager for my employee filed and was told it was not kept in the office and would be mailed to me since they implie there was documentation in there regarding "sounseling sessions" i never received my file.

i did also stress in my question form against the claim of "willful miscondut" that i did do my job to the best of my ability, never called out and always came to work on time. and gave brief overview of 2009 where i was out of the office 2 months for surgeries (which was approved by management) and worked reduced hours for 5 months and only 5 months full time and that it was unclear to me why my manager did have have my accounts handled in my absence since they do get monthly reporting of all outstanding accounts.

 

[commentator]

You should soon be receiving an initial decision soon, telling you if benefits have been approved. If not, of course you will file an appeal of the decision. If you are approved, the employer could opt to file an appeal and request a hearing to present evidence that you were terminated for misconduct. Of course, you would tell your story as it is, present your facts, and they cannot produce any write ups or letters of warning that were signed by you. So if they faked something, it probably wouldn't fly. Just wait and see here.

 

[cbg]

FYI, PA is different from many states in that, while it permits you to view your file, the law SPECIFICALLY states that the employer is not required to give you a copy.

 

[taddles]

what do you mean they cannot produce any write ups or documentation signed by me to use? they can not take that as any proof of misconduct? i never signed anything but god only knows what could get back dated and put in file. so it is basically my word against theirs?
how can they terminate me in writing for performance, a manager tell me another to fill out UC and then they pull the miscinduct out of their hat, shouldn't they have to answer to someone for manipulating things to their benefit?

 

[cbg]

What she is saying is that if the employer cannot produce any copies of writeups or warnings that you have signed, that is good for you.

Calm down.

 

[swalsh411]

If it comes down to your word against theirs and neither party has any evidence to support their claim, you will almost certainly win because they haven't met the burden of proof to show misconduct. But you do have evidence; the letter.

 

[commentator]

You need to get over this "they can't do this to me, this isn't fair, they can't say this stuff that isn't true..."

When you file for unemployment after a termination, the burden of proof is on the employer that they had a valid misconduct reason to terminate you. You present your case, what you were told when they terminated you, and in this case, what was in the certified letter to you, which you can present as evidence that what you are saying is true.

Now, you may not like it or want to hear it that you were terminated for performance issues. You may prefer that they confess they had ABSOLUTELY no reason to terminate you, that you did a good job, and that firing you for any reason was not fair.

But instead, they are trying to tell the unemployment office that they had a reason to terminate you, that this reason was "willful misconduct." The unemployment system says, "Okay, what was that willful misconduct? Show us the proof that the person did this. Had the person been warned? Did the person know this was misconduct? Did you give the person a chance to save their job by using progressive discipline?"

In unemployment law, the reason you cannot sue the employer for not telling the truth is that all hearings and decisions are done with the assumption that either you or the employer may be lying. The decision is made on which party is most believable. If they try to make up a bunch of documents warning you about your alleged misconduct, and they do not have your signature on them, and you say under oath that you never received them and never signed them, you will very probably be more believable.

Back to the original issue. If you were terminated for poor performance, you must maintain NOT that your performance was NOT poor, (and they are sorry liars to even suggest such a thing!) but that you did your best.

The employer can say your performance was poor no matter what you did, because they actually set the performance standards for their company. But if you did the job to the best of your ability and did not deliberately mess up, having the capability to do the job (in other words, goof off instead of doing what you were supposed to be doing) this poor performance is not considered misconduct. And that is what gets you approved for benefits.

 

[swalsh411]

This cannot be stressed enough. Do NOT go into that hearing with the attitude that you were a great employee and because of that your termination was unfair blah blah blah. You will lose major credibility. Just consistently maintain that you did your best.

 

[taddles]

thank you

i apppreciate all your comments. and beleive me i am not bitter at all about being let go. it is what it is. i never thought in a million years it would be fought the way it is and it is extremely stressful trying to defend yourself when you are not exactly sure what you are defending.
i am just very upset in regard to the manipulation of the truth. is it lack of work, poor performance or willful misconduct (to which i'd appreciate being told to my face, exactly what i am accused of doing) someone who lets you go in a letter and cannot look you in the eye, in my estimation, has something to hide or another agenda. i had been let go years ago due to the fact that they could not afford me, but they had the good character to sit across from me, look me in the eyes and say i am sorry this is the way it is.

you have to also understand, my husband is self employeed, they knew this and last year thinking they were people i could talk to for advice, knowing of our financial struggles the past 18 months or so due to both the economy and all the surgeries i had in the past. they turned out not to be the people i thought they were, cause who kicks someone when they are down?

 

[cbg]

They have no obligation, legal or otherwise, to take your personal circumstances into consideration when determining who to let go. In fact, they SHOULDN'T be thinking about whether your husband is self-employed or whether you had surgeries in the past (particularly the latter - that absolutely needs to be taken off the table in making the decision). That is irrelevant. Once deciding that they no longer need the position, performance is a valid reason to decide who to keep and who to let go. The value of the job to the company is also a valid reason, as is what employees have the knowledge and skills to pick up the slack once the employees who are let go have gone. The personal circumstances of the employees to be let go are NOT valid factors in making the decision.

 

[taddles]

so is it fair to say then, they will have a difficult time proving "willful misconduct" as reason to dispute my unemployment since A) i have the letter stating poor performance and B) my direct supervisor instructed me to claim unemployment due to lack of work??

are they in the hearing room at the same time i am, if it goes that far and we have to do a face to face with the UC office? are you allowed to take notes in to a hearing?

and is it important for my husband to come if he specifically heard my manager tell me to claim lack of work?

 

[taddles]

an after thought

i do understand my surgeries persay are not of any relevance, but the fact that i was not in the office full time for the year of 09 and my work was not done by anyone, should i really be the one they say dropped the ball? or the manager to whom was deligating the work and did not. and also, it was not that they did not need the position, they are hiring a part time employee. and i do know it should be none of their concern my financial situation at home, i just cannot understand how or why someone would chose to fight someones benefits claiming willful misconduct. someone said before said poor performance is not misconduct? so if i have the letter stating poor performance easily contradicts their claim on misconduct then correct?