Unemployment Compensation Service Case Study

Proof is in the Performance

Sometimes, as an employer, you are faced with the decision of letting someone go because they just can't get the job done. Poor performance discharges often result in the former employee receiving unemployment benefits charged to the employer's account. Here is the case of an employer that is protesting a discharge for poor performance.

The Claim
The claimant was a tenured location manager for a large, regional property management firm that handles high-end apartment communities. The duties of the manager required supervision of on-site staff, marketing of the property, and expense containment to ensure maximum profitability for the employer. The claimant had been with the employer for nearly eleven years when he received a final written warning related to performance issues. The specific areas of concern were short, but very important to the employer. Specifically, the claimant had not been turning around units for re-rental according to guidelines, did not properly track or follow up on marketing leads, and was not adhering to the employer policies relating to expense containment. After a period of 30 days following the final written warning, the claimant was discharged for failing to make improvement in the required areas. The claim determination found the claimant to be eligible to receive unemployment benefits. ADP filed an appeal on behalf of the employer.

The Hearing 
Defense testimony was offered that the claimant had been a tenured manager with this employer for several years. The property, which was managed by the claimant for the employer, had been one of the top three revenue-producing properties for five of the past seven years. The fact that the property in question was a top-performing property was a strong defense. The claimant testified that he had worked to the best of his ability throughout his employment. The employer testified that he agreed that the property was a profitable location. The argument was made that the claimant had been warned regarding his performance on specific issues of his job duties. His failure to correct those issues within the allotted time to do so resulted in the discharge. The employer presented evidence to show that the claimant was fully trained in his duties and had performed appropriately in the past. Copies of previously issued warnings for performance were presented to show that the claimant had corrected issues as they were brought forward. The employer testified that the willingness of the claimant to correct performance issues was considered admirable. To further strengthen the employer argument, memos and training materials were presented to show that the claimant had been offered additional assistance with areas where he was not meeting performance standards. The claimant had refused the additional training and guidance from his immediate supervisor.

The Decision
An administrative law judge ruled in favor of the employer. The decision stated that the claimant had violated a duty owed to the employer through failing to correct his work-related performance. The employer had taken appropriate steps to assist the claimant in meeting the standard that was required for continued employment. The claimant was fully knowledgeable of the standard and did not take the opportunities afforded him to make the needed improvement. It was held that the claimant was involved in misconduct, due to acts of intentional poor performance relating to the job.

The Final Word
Before proceeding with a discharge for work-related performance issues, it is important to examine what steps you, as the employer, have taken to preserve the employment relationship. If steps have been taken to coach and counsel the employee, and provide additional training, there may be a good case for intentional poor performance. It is important to note that the employee was once able to perform to standard and no longer does so after the counseling or training. Generally, the simple inability of an employee to perform to standard or to meet the expectations of the employer upon accepting a new job, position, or additional duties would not be considered intentional poor performance. A case of this nature illustrates the importance of exercising good hiring practices. When an employee does not perform to the standard required by the employer, the presumption by the state unemployment agency is that the employer made a mistake by hiring the wrong person. It is for that reason that former employees are generally found eligible to collect unemployment benefits when discharged for performance-related reasons.

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