unemployment appeal

[vanrocky]

What is the name of your state (only U.S. law)? Tennessee
I was fired for (stated in writing) policy violation and poor performance. Denial stated I was disrespectful to my supervisor. She was pressuring me, standing over my back & bullying me. Stating that she could do the job I had to as well. I stated I could and was doing it, yet she continued to harass me. I simply stated you do it then. Went on to ask her to show me how since I'm doing it wrong. Teach me. But she stormed out and refused to talk to me about it the entire day. At the end of my shift I was escorted to HR and fired. The separation notice with those 2 things was all that was discussed. They wouldn't allow me to say anything.

I had been wrote up in the past for insubordination and I stated on it that it was not the case. But that was not the reason I was fired according to my separation paper.

I worked there for 7 years and was a good employee. I am listed as rehire status. I had complained about situations about her actions toward me and called the ethics line. 3 weeks ago I was denied PTO for my sick father and she told me I couldn't get any time off and it was too soon of a notice to get FMLA approved. I went over her head and filed and took 8 days off. Came back to work for 5 days and got fired.

I'm filing an appeal. Do/did they look at my file at work? Any advice, suggestions or cold hard truth?

Thank You

 

[cbg]

Cold hard truth? You were insubordinate. I can't say I wouldn't have been upset as well; I don't like being micromanaged either. But from your description, yeah, that was insubordination.

I can't say I think much of the way your supervisor manages, but she didn't do anything illegal; she didn't violate any protected rights; and she wasn't violating any laws. Therefore, complaining about her is not protected and firing you for the complaint, if that is what you are suggesting happened, does not constitute illegal retaliation.

I'm not saying don't appeal. You may or may not prevail if you do; you definitely won't if you don't. But whether I like saying it or not, you were in the wrong.

 

[commentator]

File an appeal with unemployment. State Exactly what you were told on the day you were terminated as the reason you were terminated. I gather you have already done this initial claim and have been denied a claim by initial decision. Keep making those weekly certifications for benefits, okay? You have filed a timely appeal, and are going to have an appeals hearing. You have requested, if possible this appeals hearing in person.

Now, exactly what is the reason, in your denial statement, that you have been denied benefits. Quote it for me please.

 

[vanrocky]

Disrespectful to a supervisor. She had previously been warned for this behavior. Employer has presented copies of the warnings. That's the exact phrase on my denial.
I knew I was in the wrong the second it came outta my mouth like it did. Which is why I proceeded to ask her to teach and show me how. But she wouldn't let me finish or say anything else. Which has happened before.
When I went to HR they wouldn't listen to my side. I was just being fired and the separation said because of poor performance and policy violation. Not insubordination which was my past issue. I could go on and on about my side of those issues and other issues she held against me but they aren't stated on the separation paper. It stated what I said but not what I tried to say after. And doesn't that show that maybe too much was expected of me and maybe I couldn't do that job. I was set up for failure by not properly training me?
Maybe I'm grasping for straws. IDK. I have my regrets but then again I can sleep thru the night, my jaw doesn't hurt and my headaches are gone. I can still work for the company at another location. Just have to start at the bottom again. If I find a position that is.

 

[commentator]

On your denial letter, quote me the TCA#..... etc, as well as the verbage. I'm working on this, trying to get my mind around it. How long had you worked for this particular supervisor? Had you had good performance reviews in the past? Seven years is a long time to work at something and then have "poor performance" come up in the termination process unless you have had performance based poor reviews in the past. Had you? How about attendance issues?

Be more specific about your past write up for insubordination. Was it after an interaction with this same person or another supervisor? What were the circumstances of that situation, briefly.

You have filed the request for an appeal, haven't you? And requested an in person hearing. You do not need to put anything in the appeal request except "I wish to appeal this decision." They may try very hard to demand that you do an over the telephone hearing, but tell them you'd prefer to wait and do this in person. In the meantime, keep making the weekly certifications for benefits as you were instructed If you have stopped doing this, re open your claim and start again. If you are approved after the hearing, you will be back paid only for weeks for which you have certified for. Make sure you have certified for each week since you were terminated. If you obtain another job, wait until you have completed a full week before you stop certifications. And still carry on with this hearing and appeal, even if you get re-employed. Filing this claim should not affect your chances of getting rehired at another facility for this company.

Also, what was the nature of your job. What specifically were you doing when your supervisor was standing behind you telling you that she could do the job better that you were too slow, etc? Had you performed this job before? Was it something you were used to doing?

The thing we are dealing with, I suspect, is insubordination or misconduct on your part that they are claiming rises to the level of something like this:

• Conscious disregard of the employers’ rights or interests.

• Deliberate violations or disregard of reasonable standards of behavior expected of an employee.

• Carelessness or negligence that shows an intentional or substantial disregard of the employer’s interest, manifests equal culpability or wrongful intent, or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to the employer.

It sounds as though they decided to get rid of you for various reasons, all quite legal, possibly related to your requests for FMLA and PTO, possibly related to this supervisor just plan not liking you, and they knew you had a short fuse, could be harassed into blowing up, and they quite deliberately stimulated that behavior.

Did you, in the course of this incident that culminated in your termination behave in any way aggressively, did you jump up, stand up, shove papers away from you, raise your voice, cry or curse? In other words, is that how they are likely to describe the incident? Could your supervisor say she "felt threatened" by your disrespectful behavior. Was she invading your space, raising her voice, doing anything that appeared deliberate and threatening, anything inappropriate for a supervisor to do while offering supervision to an employee?

 

[vanrocky]

Work-related misconduct TCA # 50 - 7 - 303.
I have worked with her as my boss for 3 years before her I had had no performance write ups and while working with her I've had 1. It was said that I threatened an employee. It was overheard by 2 other employees and I admitted I said it, about my family life. That she had walked in on me and misunderstood what I was saying someone else. I talked to the HR director about it personally and he refused to believe I had said it toward a fellow employee. He said that I shouldn't cuss in the work place. When she wrote me up I stated on the paper why I said it, who it was about and who I was talking to. But that was still a write up that looked bad in my file. She knew I had a short fuse lately. I have said, suggested and done things that were right or by policy that she wasn't aware of. I had been wrote up in the past for attendance and knew that policy well. She didn't like that I pointed out that there was a 6 min give in the policy. So when I clocked in at 5:45 that was the time to be there. And I had another 6 min before I was tardy. I usually did clock in at 5:45. But I didn't get there early so I could hang my coat and purse up and log on to the computer and start my reports at 545. She didn't like that.
My job is a diet clerk at a major hospital. I've had that position for 5 years. Worked in the kitchen 2 before that. We got a new computer system last Oct. That was a challenge to learn. While on my FMLA leave the task list times changed which she said was going to make it a policy. She hadn't yet. I was told I needed to get the menu count to the cooks by 6:05. Before it was 6:30. I had done that for the past 2 days since it had changed. 1 day after the change I got it done at 6:07 and she said that was not the policy. I had tried to tell her that sometimes it was hard to get all that done in time and she said she did it while I was gone so could I. That morning I had clocked in at 5:50 which was not technically late. She fussed at me and I explained that the roads were solid ice and it took me a few extra min due to the ice on my car. Other people had been given the day off so they didn't have to drive in it. But I live close so I wasn't given that option. I proceeded to do my job and she continued to fuss at me about the way I did it. I printed one report that I have to address before the meal count is done and it was 4 pages. She had only seen it at a half page and was shocked. She said maybe my position needed to start earlier. Yet she continued to say that she could do it, so could I. She said it while watching me work at least 5 times. I was to the point that I wasn't saying anything just working. The last time she said it I said then you do it. She said are you resigning? I said no, I simply can't do this right so maybe I need to be trained again. She said that's insbordination. I didn't say anything. I tried talking to her later but she didn't have time. I did manage to say that I appoligized for the way that came out and I simply thought I needed her to show me how. Or do it so it could get done faster. The entire time I was seated and calm. I never raised my voice or even made eye contact. She was the same. But she perposfully pushed me. I've been told that she bullies me. Others have quit, I didnt. Couldn't. She has had a lot of complaints on her and has a huge turnover rate. I've been rewarded and praised for my work ethics and my caring. I was in a room with a patient when she left my boss a message stating how much I had helped her. Yet my boss never told me about it. She tells others how good they do. I've had directors in other departments praise me.
She has made up her own policies in the past and enforced them. She's been called put on a few. Those employees no longer work there. I can see how on paper I look like a bad employee. Perhaps if I hadn't signed the write up it would've been better. At that time I had a verbal for attendance. But it was in writing as well. I'm so frustrated. It hurts to know I've helped people and done a good job and this happens.
Venting a little. Sorry
Thanks for the help

 

[cbg]

Refusing to sign the write-up would have only made things worse. Signing does not mean you agree that you did wrong; it means you acknowledge receiving management's view on the matter. Refusal to sign is also insubordination.

Really, I suspect you're well out of that place.

 

[vanrocky]

I understand that. I don't think I was wrongfully fired. I just don't think I should be denied unemployment. If I was fired for something that I could get unemployment would they look back into my file a deny me for past write-ups? And maybe this is a dumb question but was the termination that "final" write-up?

 

[commentator]

Okay, we will work on this. You HAVE filed the appeal, right? Requested the hearing in person, right? If not don't waste our time.

Now, forget all about the being late, being tardy, shoveling snow off your car, etc. It's all about insubordination. let's think about it a little more, and then we will work on how you can present yourself in the hearing that will give you the best advantage toward being approved.

Remove from your mind any possibility of your employer being "unfair" or that you were supposed to be treated fairly. Understand that your employer has all the power, when it comes to what they ask you to do, what they say you must do, and what you are required to do. It is a matter of you doing the job to the best of your abilities. That you were performing in a "reasonable" way.

We will talk more in the future, after I consult my experts in the field. Meantime, tell me when your hearing is.


It was overheard by 2 other employees and I admitted I said it, about my family life. That she had walked in on me and misunderstood what I was saying someone else. I talked to the HR director about it personally and he refused to believe I had said it toward a fellow employee. He said that I shouldn't cuss in the work place. When she wrote me up I stated on the paper why I said it, who it was about and who I was talking to

Okay, this was your first write up for insubordination, right? Might explain what your family life had to do with it. Was it like stay out of my family life or I will kick your ($&%? Did someone say something derogatory about your family life? Was it your same supervisor that got you fired?

 

[vanrocky]

I said "sometimes I could just slap the f-ing sh#$ outta some people. The girl was unaware of my conversation. She just walled up and I had said it in a conversation with another girl as we talked about how my family treated my son. We were doing tray line and weren't supposed to be talking. When it was initially brought up to me a few days later I didn't even remember the incident right away and I told my boss that. She said I did say it toward the girl and she had witnesses and that she had discussed it with HR.. Then I was wrote up the next day. Before I was actually wrote up I went to HR and he didn't know anything about it. I stressed to him that I would not have said anything like that about a fellow employee. He didn't think I would either. His biggest concern was that I cussed in the workplace.

 

[vanrocky]

I just remembered.....The day I was fired I did receive a "final" written notice. When it was given to me I started to write on there my side of the story. Then I stopped and asked if it would make a difference. HR director said no I was fired either way. I then asked if anyone would ever read this in my file and he said no, it was only for their records. So I didn't write anything. Does that affect anything at all? If I had known the unemployment agency would've read it I would've wrote something. Just wondering.

 

[OHRoadwarrior]

Understand, in the workplace, absent a contract or CBA, fair does not really apply. Once, decades ago I was working for a friend who was a supervisor in a small company. He went on vacation and one of the remote cousins a laborer, decided he was taking charge. There was a batch of defective metal being processed and manufactured. I stopped the work and pointed out the need to go to the head office, since there was not a supervisor on duty to fix the issue. The family member threatened to hit me with a piece of metal and I politely advised him to put it down or it was going to be wrapped around his head. He ran to the front office, who ignored the problem and terminated me. They were out of business within 2 years which was about long enough for them to be sued for fixing all the defective metal they used because they ignored the issue and jumped to the defense of a family member threatening me. You learn to just walk away.

 

[vanrocky]

Understand, in the workplace, absent a contract or CBA, fair does not really apply. Once, decades ago I was working for a friend who was a supervisor in a small company. He went on vacation and one of the remote cousins a laborer, decided he was taking charge. There was a batch of defective metal being processed and manufactured. I stopped the work and pointed out the need to go to the head office, since there was not a supervisor on duty to fix the issue. The family member threatened to hit me with a piece of metal and I politely advised him to put it down or it was going to be wrapped around his head. He ran to the front office, who ignored the problem and terminated me. They were out of business within 2 years which was about long enough for them to be sued for fixing all the defective metal they used because they ignored the issue and jumped to the defense of a family member threatening me. You learn to just walk away.

I understand that. And I did walk away quite often. But apparently not enough and the last was exactly that, the last. I hope in my future this has taught me a lesson. I also hope that her day will come and she will be reprimanded for her wrong doing. I even remember telling someone else that she got that job because she was good friends with someone high up on the corporate ladder. Why didn't that clue me in to keep my mouth shut and control myself better?

 

[commentator]

I believe that when you have appeals hearing you can produce some commentary/evidence/verbiage that might help you get the decision overturned and the claim approved. This thing they produced as your prior warning for insubordination doesn't have much relation to the final incident that led to your termination. We might argue that. No the workplace is never fair, and they can fire you for whatever reason they want to, but you may be able to get approved for unemployment if they don't show substantive proof that you knew better than to do what you did and you did it anyway, that your conduct was beyond the bounds of reasonable behavior under the circumstances and that you behaved in a manner that met the definition of "insubordinate" which sort of works into disobeying or refusing to comply with a direct order from a supervisor. This situation, e.g. firing you right after you went over her head and got FMLA approval when she had refused to give it to you scents of retaliation. And it does sound a bit like a set up, as you weren't performing the job any different than you had been performing it for the last however long you had been doing it, right? And up till this point, it had been all right, just this particular day she decided to really ride you and give you an undeserved ration of criticism.

 

[vanrocky]

That's exactly right. I had been doing it. She was antagonizing me. I did say that I felt this was a retaliation from taking FMLA during the meeting with her and HR. He said that it was not and that I had no grounds to say that. I was wondering if the fact that my write ups say poor performance instead of insubordination makes a difference?
I still haven't heard back about the appeal date yet but I do know they received it. I will call them tomorrow.
Thanks