Compliance Connection | Poor Performance vs Misconduct

Unemployment Compensation Service Case Study

Poor Performance vs Misconduct

Sometimes it may be necessary to discharge an employee due to job performance issues. When this occurs, it is important to determine whether it is due to an inability to do the job versus unwillingness to do the job. This will make the difference between simple poor performance and work-related misconduct.

The Issue 
The claimant was a department supervisor overseeing accounting functions at an insurance company. Most of the employees are college-educated and the average tenure on the job is four years. The claimant excelled in his role in the accounting department and was promoted to supervisor after a period of two years with the employer. The claimant was discharged.

The Claim
The unemployment claim was received by ADP; an ADP representative contacted the employer to obtain additional information. The department manager was on vacation at the time, so the information was provided by the Human Resources department. The claimant was discharged for mismanagement of his position, failing to meet goals, and not following directives. The claimant had been counseled by his manager, and he failed to take the direction given to meet the job requirements of a supervisor. The employer contends this was a deliberate failure to act on the part of the claimant. No documentation was available to submit with the claim protest. ADP submitted a written protest on behalf of the employer. The claim determination found the claimant ineligible to receive unemployment benefits. The claimant filed an appeal.

The Hearing 
Prior to the hearing, an ADP representative contacted the manager for preparation of the case. It was discovered that the claimant had been in his supervisory position for less than four months and that he had struggled as a supervisor from the first week. The manager did not have any records of counseling the claimant regarding his job performance, nor had he given the claimant any written instruction on how he could improve his performance. It was noted that the claimant did not have previous experience as a supervisor and had taken the position at the request of the manager. The ADP representative explained to the manager that based upon the case preparation evidence, this matter will most likely be seen by the hearing officer as poor-performance due to inability to do the job and not intentional actions on the part of the claimant. The manager disagreed by stating the claimant had worked in the department for two years and had worked with the previous supervisor for a week, so he should have known how to do the job. At the hearing, ADP represented the employer. The claimant testified that he had taken the position reluctantly, but felt his career was in jeopardy if he had not done so due to pressure from the manager. Testimony showed the claimant was suddenly responsible for staff scheduling, budgeting, performance appraisals, and issuing disciplinary actions. The claimant stated he had no previous supervision experience and had not been given specific training by the employer in regard to the new job duties. The claimant stated that when the manager spoke with him about performance issues it was always along the lines of friends chatting and that the claimant would grow into his job. The claimant was not presented with formal warnings regarding performance or an action plan for improvement. The employer could not refute testimony offered by the claimant.

The Decision
The administrative law judge found in favor of the claimant. The decision stated that the claimant worked to the best of his ability considering the circumstances. The claimant was not qualified for the position and, therefore, the employer expectation of performance was not appropriate. The claimant is eligible to receive unemployment insurance benefits and the employer's tax account will be charged. The employer did not file an appeal.

The Final Word 
The employer has a large burden to overcome when seeking to show that an employee had been performing poorly due to intentional actions. First, it must be shown that the employee had the capability to perform the job, had appropriate training by the employer, and had actually performed the job appropriately in the past. Once the performance issues are noted, the employer must document those issues and should seek input from the employee as to how the employer can assist in offering direction or additional training. The employee must be given specific instruction regarding expectations and dates to meet the expectations. The employee should be clearly told that failure to meet the requirements of the action plan may result in termination. A written action plan with due dates is the best tool for defining performance improvement needs.

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