Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
Monique. I have the case law where they upheld a decision to give benefits over an argument an employee had with a supervisor as an isolated 'outburst' was not considered just cause to deny someone benefits. There would have to be a pattern of abuse to your supervisors established.
Its not RI but its Connecticut and the law was taken from supreme court so its going to be applied to all 50 states.
Scroll down to #6 and you will see that what I have stated here is absolutely the fact.
However, in your case they are claiming they 'talked' to you about swearing before. But the previous swearing had nothing to do with a heated exchange with supervisors. It was just 'trash talk' amongst co workers from what you stated.
Ergo, the incident of insubordination to your employer WAS an isolated outburst and you WILL win your benefits.
If they have that as the reason to discharge, then you have lost your job due to no fault of your own.
Consult with an attorney , and verify what I have told you.
Let us know how it goes
Careful relying on the case law. It was the CONNECTICUT Supreme Court that ruled on the issue, making it CONNECTICUT law but having no bearing on the other 49 states. The US SUpreme Court cases in this deal with due process for public employees and unfair labor practices for Union employees. As neither of those deal with your situation, Supreme Court case law has no bearing and the link to the article is in fact useless.
And, oddly enough, this is a quote straight from the cited source
"Repeated acts of misconduct are no longer required in most discharges."
Careful relying on the case law. It was the CONNECTICUT Supreme Court that ruled on the issue, making it CONNECTICUT law but having no bearing on the other 49 states. The US SUpreme Court cases in this deal with due process for public employees and unfair labor practices for Union employees. As neither of those deal with your situation, Supreme Court case law has no bearing and the link to the article is in fact useless.
And, oddly enough, this is a quote straight from the cited source
"Repeated acts of misconduct are no longer required in most discharges."
Read the case law further and apply it to her case. Her outburst was not an insult to her supervisor, nor was it meant to demean the sup. It was literally an emotional outburst of one word. It fits the description of isolated incident.
Last edited by JMT; 12-22-2012 at 08:13 PM..
Reason: Let's not make this personal, please.
In the future Monique, to avoid this kind of problem all you have to do is be at your desk ready to work when you are supposed to. It's not rocket science, really. In fact, many many people arrive at their work station 10 or even 15 minutes early to prepare for the day and then begin to work promptly at the appointed hour.
As a business owner, I expect people to be on time. You were counseled REPEATEDLY about this and still refused to cooperate. This indicates to me that you did not feel that being punctual was important and it also indicates to me that you probably felt the same way about other matters concerning your job.
I suggest that you work on finding another job, and this time, be punctual.
20yrsinBranson
Monique-I find this poster's comments to you to be an insult, in light of what you have been through.
Let's get real, people...if everyone was fired that was tardy or blurted out a curse word (which you said you did not do and I believe you) there would be no one working anywhere, management or staff.
Tactics such as the ones employed by Monique's workplace and HR are commonly used to sift out employees due to budget cuts or change of management regimes. It's called "setting someone up to fail" and it's done all the time with the view to getting a person to quit or coming up with a case against them in order to terminate them for just reasons.
You can appeal and hope your truth is heard, but when it comes down to it, it's your word against theirs. An employer can take an oath during a hearing, but people still lie all the time during hearings and trials.
Sometimes no matter what you do in a similar situation, you are going to be ushered out the door because that's the way they want it. It hurts, it's wrong, it's mean, but it's done all the time, unfortunately.
I wish you nothing but luck and I hope things go your way.
^^^I see your point, but I also think 20yrs was making a valid point. As I was reading OP's initial post, I will admit that I was a little surprised by the numbers of times OP continued to be late after being warned. It seems like a small think to a lot of people, but if you have a boss who cares, 3 minutes IS late. I think that was the point being made.
Excited utterance is likely your best argument. HOWEVER, if you can get someone else to testify and they will say that swearing was common, well you may have a better shot of the "I did it before...and so didd he...and noone said anything" defense.
Also, I would mention the heck out of Doug (I htink that was the name you gave him) constantly stating that Charles was no longer there....tell them that if the rules had changed when Doug took over, you had no way of knowing as all you were ever told was that CHarles was no longer there but people were TSILL not disciplined for the things similar to what you said. The company MAY try to say you had issues with the new boss...show that your work habits did not change.
Also, if they bring up the tardiness, you CAN win by showing that you were improving. Although that does not seem to be the issue.
+5!
OP, please take this into account when you go to the hearing.
I'd like to thank everyone for their comments and responses. I do appreciate the time you've taken to read through my encyclopedia and respond accordingly.
Its been a bit of a weird week, we've had two losses in the family..one to cancer, and the other to a home invasion gone wrong.. Very weird week, to say the least.
I do appreciate all the input, but I want to clarify a few things please.. I probably made the mistake of bringing it up, but the issue here is not the tardiness. Not at all... I wasn't terminated for being tardy.. I was terminated for my language. I only brought up the tardiness because it was how everything started. In truth, it might not be right, but everyone took advantage of the lax system. Hence 75 - 90 min lunches, and a gazillion sick days here and there.. I've been in at work till way past my time almost every day, and to be honest, I think they know they would have a hard time proving that it was a problem because of how often they encouraged it (it meant me working late and doing more work)... Basically, there NEVER was an issue with it before him... I mean, he took advantage of things just as much as we all did.. He'd leave for lunch, not come back, leave for days ("working from home"), and they always would go on about the quality of my work and how great it was...
But all of that is inconsequential. If I could do things over today, I of course would. My whole issue here is just trying to prove that I was terminated because of personal issues, and nothing more... That's it. The tardiness wasn't ONCE mentioned in the course of my termination (or letter), and neither was anything else. So if they're saying that I was fired because of saying "You've got to be effing kidding me!" (which was exactly what I said), then we all should have been fired months before.. That's it. I'm not trying to make a big case out of anything, or paint myself a martyr.. I just know my firing was the direct result of personal dislike, and I do think its unfair..
.. I have a funeral this evening for my aunt, so I have to go. We have a lot of people coming in to express their sympathy, so I'm starting to feel rude sitting here on my laptop.. I want to thank you all again for everything thus far.. and I hope I've clarified things a bit... I'm not saying I've been the perfect employee.. I just would like to think that if I'm getting fired after seven years, its not because you don't like me..
Thank you SO MUCH for this! I think this would be relevant though, if I was fired for being tardy or anything that had to do with tardiness. But thank you all the same, I appreciate your input.
The underlying problem was your lateness regardless of what HR used as an excuse to give you the boot. Your attitude appears hostile and complacent, not only to your workplace but to the people on this forum who are trying to sincerely help. I suspect this isn't the first time you have had problems like this with your job, and likely it won't be the last. When you are willing to change your attitude, you will see that things get much better for you with regard to your employment situation.
The underlying problem was your lateness regardless of what HR used as an excuse to give you the boot. Your attitude appears hostile and complacent, not only to your workplace but to the people on this forum who are trying to sincerely help. I suspect this isn't the first time you have had problems like this with your job, and likely it won't be the last. When you are willing to change your attitude, you will see that things get much better for you with regard to your employment situation.
20yrsinBranson
Your opinion remains your own, of course; You're totally entitled to them. I put this on here, so I can't begrudge you for reading it and sharing your take. What I do have control over though, is what I take away from it. You know nothing but what you've read, and detailed as it might be (God knows its long), represents only a particle of who I am, my professional life, or my job history as a whole. I've only been working for over 16 years with this one suspension and termination under my belt. (I'd dare say if my attitude was that bad, I'd have even one negative review on record in the past seven years).
Anyway, I once again thank you for your input. Its not my intention to appear confrontational or rude; I just don't think you know enough about me or my attitude to draw the conclusions that you've drawn, and I've opted to disregard them. You're free to respond/rebut of course, but I have to warn you that you're going to have a really hard time drawing me into anything on here..
If an employer doesn't like you for some reason and/or doesn't want you working there anymore, they will bully you as much as they can to try to get you to quit. I've been there. They will scrutinize you for every little thing you do wrong while overlooking what others do wrong. The reason is if they get you to quit, they are not charged for your unemployment benefits should you collect.
As far as I know, you have to have a history of misconduct for what they fired you for. Since the language thing was only an isolated event and you didn't get any warnings about language prior to this, you shouldn't be denied benefits. I think Unemployment just defaults to siding with the employer if they are unsure about anything. I had to appeal my employer, and as I didn't have a history of misconduct for what I was fired for, I won my appeal.
My advice is just be polite at the appeal and show the judge that you don't normally act like that. Also I would just keep quiet unless asked a question and try not to argue with the employer, just state the facts.
I won my Appeal!! (A very detailed account of the process)
I just got the letter from the board of review today, and I won my appeal, YAY!! First off, I would like to mention that the awesome 'Chyvan' had been helping me over the past few days. I wrote to ask for any suggestions or tips, and he was incredibly helpful and generous with sharing his knowledge.. I cannot thank you enough, Chyvan.. !
Well, I put up this post because I wanted to share my experience in the hopes of maybe helping anyone out there who has a review/appeal coming up. I remember I was so worried that I googled for hours trying to find out a little about what to expect at my review. Here’s my pretty detailed account of everything appeal related.
Okay.. So I got terminated on 11/6 for inappropriate language after I had lost it and exploded during an altercation with my interim Director. I was fired for swearing at him and being inappropriate in the workplace. My grounds for appealing was not to deny that I had sworn, but to prove that the only reason I had gotten fired for it was because the interim director had a personal issue with me, and that I was not the first person to swear in the department, but was the first person fired for it.. (I hope all of that makes sense - please ask if not).
Well, thanks to Chyvan, I had prepared a list of questions to ask my employer at the review. He advised that I want to show that all my troubles began with the new Director, and that the swearing was a one time isolated incident. Below are some of the questions I had... I initially had more, but Chyvan had gone through them for me, and had given suggestions/recommendations that whittled them down to what's listed below (I kept the recommended edits in):
************************************************** ****************
How long did I work for Mr. James? (Alias given my previous director)
Did he ever complain about me?
How many years did I work for you? Was it really years or more like months?
As Associate Director of the department, is it safe to assume that you were aware or would be made aware of any issues or problems with the employees in the department?
If you were to estimate, how many times did Mr. James warn me or speak to me about matters regarding language in the office?
Did I ever get a warning about my language? I prefer this because I'm assuming that Charles (James) nor Doug (new director) warned you. Doug just plain fired you.
Have you fired other employees for using inappropriate language in the office? if "no" then stop, if "yes then: How many warnings did they get?
************************************************** ***********
I did have a few other questions added that night, but you get the general idea.
I arrived at the building about an hour early because I wanted to review all the documentation submitted in my case. When Chyvan had suggested this, I had thought that I would need to ask for the documentation, but it turns out that its procedure, because as soon as I walked in and identified myself, the secretary behind the window handed me my file and asked me to look it over thoroughly. (She actually later copied the entire file for me on request. I wanted to have the paperwork to refer to during the review).
I still have everything, so I’ll list what was in the file (in order):
1. A copy of the ‘Notice of Referee Hearing’ I had received in the mail.
2. A printout of my request for an appeal that I had submitted online after I received the adjudicator’s letter of denial.
3. A copy of the denial letter sent by the adjudicator
4. A detailed account of the adjudicator’s investigation and findings. Obviously my conversation with the adjudicator via phone was recorded and transcribed, because it had my ‘statement’ to her on the phone typed out verbatim on this report. It also had a statement from the HR person she had spoken to, as well as the rebuttal statement I had given when she (the adjudicator) had called back to give me a chance to rebut what the HR rep had said. I should note here that EVERYTHING I said (down to the hesitations and corrections) was noted on this report.
5. A 9 page FAX (including cover sheet) from my HR rep to the CAU (Adjudicator) that included a form from them (CAU) that he had filled out, my termination letter, and 5 (YES FIVE) statements from different employees about the events of that day that had resulted in my termination. If you’re wondering, the form the HR rep had to fill out to give a brief reason for termination. All he (the rep) had written was “insubordination”, and had written a bunch of ‘N/A’ under the other fields.
And that was that. I read through everything thoroughly, and took down a few notes. Now, the statements from my ex-coworkers were terribly conflicting. Seriously, no two people said the same thing. Now, Chyvan had already told me that I had the option of requesting that the statements be stricken from record because I couldn’t cross examine the people who wrote them, and that’s exactly what I did… but I’ll get to that later.
I was reading the statements when the director guy walked in. I had been nervous that he would send someone else (like the HR rep), and not show up, because I ‘really’ wanted an opportunity to cross examine him myself. I felt very relieved when I saw him, but also immediately got all stressed and nervous, because his presence meant that it was ‘really’ happening.. If that makes sense.
After I had written everything I could think of at that moment (such as marking inconsistencies in their statements in case my effort to strike them failed), I leaned back, closed my eyes, and thoughtfully waited to be called. I didn’t have long to wait. I was sitting there for a few minutes when an older gentleman walked up and called my name. I raised my hand, and he asked me if my employer was around (the director had opted to sit in the hallway instead of the waiting room). I answered that he was, and pointed in the direction the director was sitting. They shook hands, and he led us both into his office.
The review itself:
We each sat on opposite sides of this table, and he (The judge guy) sat at the head/end. He informed us of what we were doing there, and told us that we would each be sworn under oath, and that he (the director) would go first. He told us we were being recorded, and wanted to know if either of us had any questions.. We didn’t. I did bring up the matter of the statements being taken off the record as I couldn’t cross examine the writers, and the reviewer agreed with me by saying “That’s true, you can’t cross examine paper, I will disregard them”.. or something close to that.
We both raised our hands and swore, and then my employer was asked to go first. He (the director) started by saying that he had brought his original written statement with him, and wanted to know if he could just read it out loud. The reviewer said while he didn't particularly mind, he would prefer to hear the director’s verbal account of what happened. The Director wasn't pleased to hear that (based on body language), but shrugged and attempted to, anyway. He kept referring to it though, and was done in less than 3 minutes (and that’s me highballing it).
The reviewer asked him if he had any questions, and he said “no”, leaned back, and crossed his arms. Then it was my turn to question him. I pulled out my list of questions, and started going down the list. I asked the director if he had ever heard anyone swear in the department before. I asked this because the previous director (that he was replacing) used to go on these really loud, long, expletives filled tirades every time he got upset or irritated, and I planned to use it as a way to prove that I was being singled out. I didn’t expect however, that he would lie about it.. Especially being that we were under oath. He said “no, I’ve never heard anyone else swear in the office before”. A little taken aback, I got a little more direct, and said “You never heard Charles swear? Those times he would stand in the hallway and just scream profanities in anger?”, and he kept saying “no”. I looked at the reviewer and told him that I wasn’t sure how to proceed because the director was most definitely lying under oath. I said, “I had a line of questioning all set up, but I don’t even know if I want to get into it now because he’s blatantly lying” . The reviewer said for me to just keep asking anyway. I asked if he (Doug) had ever sworn in the office (knowing fully well he had), and he once again answered “NO”. I then went “So you’re telling me that I’m the ONLY employee you’ve EVER heard swear in the office in the 10 years you’ve worked there”, and he said “yes”. I glanced at the reviewer when he said this, and he motioned for me to continue.
Basically, that’s how it kind of went down. He wasn’t cooperative at all, and answered all my questions in single word answers. The reviewer leaned forward to ask a few questions of his own, and the body language was the same. Among the questions asked by the reviewer, were if I had ever directed any of the swears at him (the director), and if I had ever sworn before, and both times, the director answered “no”. When the reviewer got the answer to the latter question, he frowned for a second, and asked if this was the first time I had sworn, and the director answered “yes”. The reviewer looked perplexed at that..
Anyway, there’s more, but I feel like I’ve been going on forever. If you have ANY questions at all, please do feel free to ask, I will most definitely be glad to assist if I can. I got the letter in the mail today, and some parts read as follows:
1. TRAVEL OF THE CASE:
An employer representative appeared and testified. The claimant appeared and testified. Although there had been conflicting testimony presented, the findings of fact are based on the weight of credible evidence presented.
2. FINDINGS OF FACT
The claimant worked for this employer a period of over five years through 11/2/2012. During this period of employment, the claimant had an unblemished employment record. On the date in question, the claimant did have a confrontation with the associate director regarding a timely completion of the timesheet. She does acknowledge making expletives in regards to the situation and the timesheet. She denies directing any vulgarities at the employer as alleged. She was initially suspended and subsequently terminated as a result of this incident.
3. CONCLUSION
The issue involved is whether or not the claimant was discharged from this job under disqualifying circumstances within the provisions of Section 28-44-18 of the RI Employment Security Act.
The right of an employer to discharge an employee is not an issue in this case. The sole issue is whether or not there is evidence of proved misconduct resulting in termination. The burden of establishing proved misconduct rests solely upon the employer. There has been insufficient evidence presented to establish that the events resulting in the separation constitute misconduct. At best, the situation was an isolated incident, poor judgment on the part of the claimant when she made those derogatory remarks towards the situation and the timesheet, but not derogatory toward the employer. An isolated incident and poor judgment does not constitute misconduct and benefits may not be denied on this issue.
4. DECISION
The decision of the Director is reversed. The claimant was discharged, but not for reasons of misconduct in connection with the work. Benefits therefore, cannot be denied.
And that, dear friends.. is that! I’m so grateful and so thrilled..! I have two months of back pay stocked up, and I’m relieved to finally have ‘some’ income again!
I hope my account here helps someone somehow, but if I can answer any other questions, please don’t hesitate to ask.. YAY!
Please register to post and access all features of our very popular forum. It is free and quick. Over $68,000 in prizes has already been given out to active posters on our forum. Additional giveaways are planned.
Detailed information about all U.S. cities, counties, and zip codes on our site: City-data.com.
Please register to participate in our discussions with 2 million other members - it's free and quick! Some forums can only be seen by registered members. After you create your account, you'll be able to customize options and access all our 15,000 new posts/day with fewer ads.
I won my Appeal!! (A very detailed account of the process)
