Unemployment Compensation Service Case Study
The Correct Witness
When an unemployment claim dispute escalates to the hearing phase, who is the right person to testify? One employer learned the hard way...
The Final Incident
The claimant was a cashier at a business that specializes in check cashing, money orders and wire transfers. The final incident occurred on a Thursday afternoon while the location was moderately busy. A customer requested that his check be cashed with crisp ten-dollar bills, explaining that he wanted to place money inside of a birthday card for his daughter. The cashier stated that she did not have any crisp bills. A supervisor heard the claimant's response and offered to get new bills from the cash vault. The claimant ignored the supervisor and proceeded to complete the transaction. The supervisor once again made the offer … and was once again ignored. The next day, the claimant was discharged by the general manager for insubordinate behavior toward the supervisor. The claimant was not asked to explain her actions, since she had been counseled for the same type of behavior on two previous occasions. The general manager did not personally witness the incident.
ADP received the unemployment claim and a protest was sent to the state agency. The protest asserted that the claimant was discharged for insubordination and refusal to follow directives. Records of the employer policy and previous counseling sessions, signed by the discharged employee, were included with the protest written by ADP. The claim determination found the claimant to be disqualified from receiving unemployment benefits. The claimant filed an appeal.
In order to establish a strong, credible case, the ADP hearing representative advised the employer of the importance of a first-hand witness. Unfortunately, the employer felt that the supervisor involved in the final incident would not present herself well at the hearing and did not allow her to testify. The general manager appeared instead, detailing the final incident and presenting the signed counseling forms that detailed three occurrences of insubordinate behavior and documented the claimant's admissions of harboring bad feelings toward the supervisor. In response, the claimant admitted to having had some "issues" with the supervisor and ignoring her in the past. She stated that she did not recall the final incident and denied that it had occurred. The claimant explained that she had had very little contact with the supervisor on the date in question and was surprised that she had been discharged without an opportunity to give her side of the story.
The Administrative Law judge found in favor of the claimant. The decision stated that the claimant had been discharged by the employer due to perceived misconduct. While the claimant admitted acts that could be considered misconduct in the past, she denied that the final incident alleged by the employer ever occurred. And because the first-hand witness did not testify, information about the final incident was considered hearsay. The claimant was found eligible for benefits without disqualification.
The Final Word
At an unemployment hearing, it is essential that you present testimony from those who directly witnessed the events leading up to the termination of an employee. Whether it's the supervisor who accepted a claimant's resignation or the employees who observed the claimant violating a company policy, the individuals with first-hand information are the most effective witnesses to testify at a hearing. A party presenting testimony of a first-hand witness is afforded more credibility than one without.
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