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ognireerf

Junior Member
What is the name of your state (only U.S. law)? ca

I was terminated for alleged misconduct towards another employee. I got my EDD appeal hearing in the mail yesterday and have 6 days to prepare.
My employer stated that I was terminated due to an ongoing confrontation with co worker. The final incident they claim was on 3/2/16 the day before my firing and they claim that I was warned on 1/16/16 about such behavior. The facts are that I did not even work on 3/2/16, for Wednesday are my day off and the alleged warning date is on a Saturday. Are these discrepancies enough to win my EDD appeal or do I need to go into more detail of what happened?
 


Shadowbunny

Queen of the Not-Rights
What is the name of your state (only U.S. law)? ca

I was terminated for alleged misconduct towards another employee. I got my EDD appeal hearing in the mail yesterday and have 6 days to prepare.
My employer stated that I was terminated due to an ongoing confrontation with co worker. The final incident they claim was on 3/2/16 the day before my firing and they claim that I was warned on 1/16/16 about such behavior. The facts are that I did not even work on 3/2/16, for Wednesday are my day off and the alleged warning date is on a Saturday. Are these discrepancies enough to win my EDD appeal or do I need to go into more detail of what happened?

So what day did the final incident occur? And what day were you warned?
 

ognireerf

Junior Member
there was no final incident that I am aware of. They stated that I had told the resident manager "he didn't know what he was doing and that I could help do it better". (his words not mine) he also stated "he never knew what kind of mood I would be in and that he shouldn't have to work in this environment."
That was in regards to the fact that he wrote a work order on 3/1/16 in which he posted the customer copy on tenants front door before I (maintenance tech)
had even done any work. He had been there 8 months and should have know better and was against company policy, I merely pointed it out to him. As I said I didn't work next day and on the day of my firing, I worked in apartment all morning painting until I came back from lunch and District manager drove 100 miles and handed me my termination papers with no reason or explanation. The warning in question was a site visit by regional manager in late January where we all had a teamwork meeting where I initiated a 15 minute daily get together (which I did with my 3 past managers) with myself and new manager that he was refusing to do for last 6 months. I also had a dispute with him about the emergency phone responsibility as I had previously tried to resolve with Regional manager to intervene because I had temp responsibility of phone (my cell phone) for over 1 year while there was no resident manager on site. I was told he would handle it and it never was. So, I in good faith, to try and resolve our differences, I volunteered to take on full responsibility of emergency calls on off hours. I believe the new manager was trying to get me fired because I asked him about christmas decorations in the rec center for my elderly tenants and he said he got a memo saying NO Decorations are permitted. I then called our main office and they said no such memo went out and it was OK to put up decorations and I did so at my own expense. When the resident manager found out he threw a fit.
 
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Shadowbunny

Queen of the Not-Rights
there was no final incident that I am aware of. They stated that I had told the resident manager "he didn't know what he was doing and that I could help do it better". (his words not mine) he also stated "he never knew what kind of mood I would be in and that he shouldn't have to work in this environment."
That was in regards to the fact that he wrote a work order on 3/1/16 in which he posted the customer copy on tenants front door before I (maintenance tech)
had even done any work. He had been there 8 months and should have know better and was against company policy, I merely pointed it out to him. As I said I didn't work next day and on the day of my firing, I worked in apartment all morning painting until I came back from lunch and District manager drove 100 miles and handed me my termination papers with no reason or explanation. The warning in question was a site visit by regional manager in late January where we all had a teamwork meeting where I initiated a 15 minute daily get together (which I did with my 3 past managers) with myself and new manager that he was refusing to do for last 6 months. I also had a dispute with him about the emergency phone responsibility as I had previously tried to resolve with Regional manager to intervene because I had temp responsibility of phone (my cell phone) for over 1 year while there was no resident manager on site. I was told he would handle it and it never was. So, I in good faith, to try and resolve our differences, I volunteered to take on full responsibility of emergency calls on off hours. I believe the new manager was trying to get me fired because I asked him about christmas decorations in the rec center for my elderly tenants and he said he got a memo saying NO Decorations are permitted. I then called our main office and they said no such memo went out and it was OK to put up decorations and I did so at my own expense. When the resident manager found out he threw a fit.


There are some HR experts on this forum who will most likely chime in later, but I can't see a typo as being the basis of winning or losing a UI claim.
 

commentator

Senior Member
You have a CA hearing in 6 days. You need to get your ducks in a row as based on what you say happened. It doesn't matter WHAT day you got the actual warnings. A typo, as it has been pointed out, is not going to change the whole story, exactly what happened in January, and what actually happened on the incident immediately before you were fired.

The question, or issue, is going to be "did this person have warnings that his/her behavior was not acceptable, and then in a final incident, he/she did the same thing again, which was try to defy the manager, explain to him what his job was, and be insubordinate to him as they were attempting to get the work done?" Fix it so it doesn't sound this way. You'll get your chance to tell your story.

I don't think I'd make any kind of big deal about what actual date these things happened on. You yourself admit there was some sort of issue that was had in January during the visit of the regional manager. Exactly what did happen then I cannot figure out, but it would be to your advantage if you can truthfully state that during that visit you were NOT warned that you were treading on the ground of trying to take over the manager's job, which is frankly what it all sounds like. If a manager is "trying to get you fired" make no doubt about it, they can do it, legally, too. Just because you felt you could do the job better than they could, and felt led to share with them how you thought the job ought to have been done doesn't clear you. Certainly not that they report this incident happened on the wrong day. But the whole issue is, did they, did anybody, at this time, tell you to back off and do what the manager told you to do?

Then on the last incident, the incident that precipitated your firing, was this insubordination? Really? Think how you can describe this in some other way. This about the most positive light you can put on this whole incident. You informed the manager that he had done the wrong thing by posting the maintenance order on the tenant's door, right? You were trying to help, trying to get the job done right, weren't you? Memorize this phrase, "I always did my job to the best of my abilities."

You may point to the incident of the Christmas decorations and try to put it in a positive light, but frankly, you had been told NOT to decorate, and you went on and did it, at your own expense. Don't even bring this one up if they don't because it makes it look like you were trying to take over this manager's job and tell him how to run the facility. That's considered insubordination, and may cost you your job without unemployment insurance. Don['t whine about how this new manager didn't like me, had never liked me, had had it in for me because.... it's your job to do what the manager wants, even if he's a total incompetent.

Be careful to emphasize your interest in doing a good job, how long you had been there, doing a good job, how you tried always to do the job right and to the best of your abilities, and you never refused to do your assigned duties or a direct order from your manager.

Keep making your certifications until after the hearing, so that if you win in this decision you can be back paid for all the weeks before that you have filed for.

Be polite, professional and to the point in your hearing. Listen carefully to the questions that the hearing officer asks you. Do not speak out of turn. Say over and over, any time you can work it in, that you did not mean to be insubordinate and that you always did your job to the best of your abilities.
 
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ognireerf

Junior Member
You have a CA hearing in 6 days. You need to get your ducks in a row as based on what you say happened. It doesn't matter WHAT day you got the actual warnings. A typo, as it has been pointed out, is not going to change the whole story, exactly what happened in January, and what actually happened on the incident immediately before you were fired.

The question, or issue, is going to be "did this person have warnings that his/her behavior was not acceptable, and then in a final incident, he/she did the same thing again, which was try to defy the manager, explain to him what his job was, and be insubordinate to him as they were attempting to get the work done?" Fix it so it doesn't sound this way. You'll get your chance to tell your story.

I don't think I'd make any kind of big deal about what actual date these things happened on. You yourself admit there was some sort of issue that was had in January during the visit of the regional manager. Exactly what did happen then I cannot figure out, but it would be to your advantage if you can truthfully state that during that visit you were NOT warned that you were treading on the ground of trying to take over the manager's job, which is frankly what it all sounds like. If a manager is "trying to get you fired" make no doubt about it, they can do it, legally, too. Just because you felt you could do the job better than they could, and felt led to share with them how you thought the job ought to have been done doesn't clear you. Certainly not that they report this incident happened on the wrong day. But the whole issue is, did they, did anybody, at this time, tell you to back off and do what the manager told you to do?

Then on the last incident, the incident that precipitated your firing, was this insubordination? Really? Think how you can describe this in some other way. This about the most positive light you can put on this whole incident. You informed the manager that he had done the wrong thing by posting the maintenance order on the tenant's door, right? You were trying to help, trying to get the job done right, weren't you? Memorize this phrase, "I always did my job to the best of my abilities."

You may point to the incident of the Christmas decorations and try to put it in a positive light, but frankly, you had been told NOT to decorate, and you went on and did it, at your own expense. Don't even bring this one up if they don't because it makes it look like you were trying to take over this manager's job and tell him how to run the facility. That's considered insubordination, and may cost you your job without unemployment insurance. Don['t whine about how this new manager didn't like me, had never liked me, had had it in for me because.... it's your job to do what the manager wants, even if he's a total incompetent.

Be careful to emphasize your interest in doing a good job, how long you had been there, doing a good job, how you tried always to do the job right and to the best of your abilities, and you never refused to do your assigned duties or a direct order from your manager.

Keep making your certifications until after the hearing, so that if you win in this decision you can be back paid for all the weeks before that you have filed for.

Be polite, professional and to the point in your hearing. Listen carefully to the questions that the hearing officer asks you. Do not speak out of turn. Say over and over, any time you can work it in, that you did not mean to be insubordinate and that you always did your job to the best of your abilities.

thank you for the sound advise I was way off
the Jan meeting was all about team work and to get past the cell phone argument we had in december where I agreed to take over full cell phone responsibilities. My Regional manager even said what a great employee I was and I had just got a raise 2 weeks prior after augment. I was never warned of termination for any previous actions or future actions. I initiated the ideas of having walkie talkies to enhance better communication and a 15 min daily meeting with manager since we weren't doing that. We all agreed and continued do my job the best that I could. 1 week after meeting I had a seizure at home and went to ER. My district manager demanded that I get a doctors release to come back to work which I did the next day wearing a heart monitor.
2 weeks after that my transgender daughter called me and was talking suicide. This freaked me out along with the new fear of another seizure I was a mess. The week of my firing my dad was in open heart surgery and my wife found out she needs heart surgery. I even put in for a vacation end of March get get my head together. My manager knew about my personal troubles as I spoke about them often. One other note is that In Sept last year after been on job with perfect record 1 1/2 years a co worker from another complex showed up and when I tried to engage conversation with me he bleww up in my face and called me every name in the book. I made a formal complaint to HR as was our company policy and they reprimanded me also saying I should have known to walk away from a confrontation. I did nothing wrong when asking him to leave the property, which he did.
 

Shadowbunny

Queen of the Not-Rights
..... My manager knew about my personal troubles as I spoke about them often. .

The Experts (commentator & cbg) gave/confirmed UI advice; I"ll chime in with work-life advice: The above is NOT a good way to conduct yourself as an employee. By speaking of your personal troubles "often" you can give the perception that you're too preoccupied with your personal life to focus on your work.
 

ognireerf

Junior Member
The Experts (commentator & cbg) gave/confirmed UI advice; I"ll chime in with work-life advice: The above is NOT a good way to conduct yourself as an employee. By speaking of your personal troubles "often" you can give the perception that you're too preoccupied with your personal life to focus on your work.

It was an error in judgement that's for sure.
I have been seeing a therapist since my firing, I am better now.
 

commentator

Senior Member
Congratulations on getting out of what may have been a "not good for you" situation. Many people have found that though they had thought that being fired would be the worst, it turns out for the better, and new opportunities they might not have reached for open up for them in new places. You can very rarely fix a bad work place. You got over involved, gave them your best to the point of nearly driving yourself nuts, and then they reciprocated by getting rid of you, probably because of your request for vacation, your health and personal problems. Now, lets concentrate on seeing if we can re-work the unemployment situation to where you may approved for benefits.

In order to terminate somebody and get them NOT approved for benefits, the employer must prove that they had a valid misconduct work related reason to terminate you. It must either be gross misconduct (something so bad that any reasonable person would've known it was wrong to do it even one time) which you only have to do once, or it has to be something egregious that you had been given warnings about, had been warned that if you did it again, your job was in jeopardy, you were warned once on (prefer a date, and a copy of a written document) and then on (again, they'd prefer a date and a specific document,) such and so, this happened, followed by a very exact description of what happened to be the precipitating incident of the firing.

What ever your employer cobbled together to make it look like this was how it happened, your job in the hearing is to show that (1) you did your job to the best of your abilities and (2) you were not given any real specific warning about what was wrong with your job performance or how you could change your on the job behavior and keep your job. (3) The employer wanted you gone for probable other reasons, such as your attempts to correct problems on the job they would have sooner not thought about and because of your personal situation, which they feared would involve time away from work and of course, your tendency to report things and send up complaints if the work was not done right.

You need to get this across without being too wordy and not accusing them directly. Do not try to go for the sympathy vote, do not mention your problems at home, or your current therapy or how this job had driven you bonkers. Just stay on how you worked so hard to do a good job, and how most all of the feedback you had received was about what a good job you were doing, how you never intended to be insubordinate or never refused a direct order from your supervisor. Stress that you wanted to keep your job and that if you had known your job was in jeopardy, which you did NOT know, and had NOT received warnings to this effect ( and you might actually casually point out, having a calendar handy, that on the date you were supposed to have received the warning in January, it was Saturday and you were not even at work).

In describing the supposed precipitating incident, you might also point out that the date they give for what they say happened was Wednesday, and you were off on Wednesday. You may tell them what happened the day before, and how what you were told was that the manager got angry when you told him this wasn't the correct procedure, and said something about how he "never knew what sort of mood you were going to be in" but this was not interpreted by you as a firing. Repeat that you always tried to do your job in the best way possible, and how you did not want to lose your job and would have done anything it took if you had been aware that you were about to lose your job to change any behavior they made you aware of that needed to be corrected.

Good luck to you, please come back and let us know how things go for you.
 

ognireerf

Junior Member
Congratulations on getting out of what may have been a "not good for you" situation. Many people have found that though they had thought that being fired would be the worst, it turns out for the better, and new opportunities they might not have reached for open up for them in new places. You can very rarely fix a bad work place. You got over involved, gave them your best to the point of nearly driving yourself nuts, and then they reciprocated by getting rid of you, probably because of your request for vacation, your health and personal problems. Now, lets concentrate on seeing if we can re-work the unemployment situation to where you may approved for benefits.

In order to terminate somebody and get them NOT approved for benefits, the employer must prove that they had a valid misconduct work related reason to terminate you. It must either be gross misconduct (something so bad that any reasonable person would've known it was wrong to do it even one time) which you only have to do once, or it has to be something egregious that you had been given warnings about, had been warned that if you did it again, your job was in jeopardy, you were warned once on (prefer a date, and a copy of a written document) and then on (again, they'd prefer a date and a specific document,) such and so, this happened, followed by a very exact description of what happened to be the precipitating incident of the firing.

What ever your employer cobbled together to make it look like this was how it happened, your job in the hearing is to show that (1) you did your job to the best of your abilities and (2) you were not given any real specific warning about what was wrong with your job performance or how you could change your on the job behavior and keep your job. (3) The employer wanted you gone for probable other reasons, such as your attempts to correct problems on the job they would have sooner not thought about and because of your personal situation, which they feared would involve time away from work and of course, your tendency to report things and send up complaints if the work was not done right.

You need to get this across without being too wordy and not accusing them directly. Do not try to go for the sympathy vote, do not mention your problems at home, or your current therapy or how this job had driven you bonkers. Just stay on how you worked so hard to do a good job, and how most all of the feedback you had received was about what a good job you were doing, how you never intended to be insubordinate or never refused a direct order from your supervisor. Stress that you wanted to keep your job and that if you had known your job was in jeopardy, which you did NOT know, and had NOT received warnings to this effect ( and you might actually casually point out, having a calendar handy, that on the date you were supposed to have received the warning in January, it was Saturday and you were not even at work).

In describing the supposed precipitating incident, you might also point out that the date they give for what they say happened was Wednesday, and you were off on Wednesday. You may tell them what happened the day before, and how what you were told was that the manager got angry when you told him this wasn't the correct procedure, and said something about how he "never knew what sort of mood you were going to be in" but this was not interpreted by you as a firing. Repeat that you always tried to do your job in the best way possible, and how you did not want to lose your job and would have done anything it took if you had been aware that you were about to lose your job to change any behavior they made you aware of that needed to be corrected.

Good luck to you, please come back and let us know how things go for you.

Thank you for the good advise
can you comment on "condonation", as I got a raise 1st week of Jan and a xmas bonus 3 weeks before that.
What would be the best way to present that?
.....Condonation, or condonance may be made when an accuser has previously forgiven or condoned (in some way or at some level supported) the act about which they are complaining. In some legal jurisdictions, and for certain behaviors, it may prevent the accuser from prevailing.

FYI I am relieved to be away from that job
 
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commentator

Senior Member
While I am quite familiar with the term, I tell you this with all my heart. Do not attempt to quote labor or unemployment law in your hearing. It won't work well and it won't serve you well. Either the administrative hearing officer will be familiar with the laws and will be insulted that you have attempted to quote them to him/her, tell them how it ought to be, or they will be totally unaware and will not get what you are talking about and will resent you because of your trying to go all "lawyerly" on them.

You are not expected to be versed in the states' unemployment laws. This is not an adversarial situation where you are arguing your case in front of a jury. You cannot pound the argument into someone who is obligated to be a judge. This is just where you are telling your story, as a layman, to a hearing officer. State what you mean in simplest terms you can communicate it with.

As an employee, you are depending upon your employer to give you the feedback on whether or not you are doing a good job. If you are told you are doing a good job, are given a raise, are given NO indication that your job is in any way in jeopardy, then you are pretty much depending on that to believe that you were doing your job to the best of your abilities. You are pretty much at the mercy of the employer. If they didn't tell you they wanted you to change, didn't tell you that there was something you were doing that they didn't like, then how can they expect you to change that behavior and do a good job?
 

ognireerf

Junior Member
Since the EDD claimed they never received my documents and I didn't get employers documents until 20 minutes before hearing, the Judge granted
a recess for 2 weeks. The interesting thing is that the employer isn't using my past manager as a witness. He is the person making all the accusations against me via emails to HR and District manager. The only people appearing are the HR lady and 2 witnesses district manager and regional manager. Both whom were never witness to any misconduct or insubordination and I only saw each of the maybe 5 times each in the last 6 months for 10-45 minutes at a time.
The HR lady I spoke with 3 times in last 6 months and I emailed her once. Any new advise on what to focus on in my continued case? I had all my focus on questioning resident manager and now he's not there. Also to note that when I received my employee files there was one document that was an email from payroll dept to HR lady itemizing my final paycheck and he claimed he would be ready to issue a live check today. That transmittal was dated 3/3/16 (day to my firing) at 9:52 am. The HR lady claimed in her EDD interview that district manager came to my complex to give me another written warning and that when he try to explain it to me I became confrontational and thats when he decided to fire me. That is a total false statement as I was handed my termination papers to sign with a witness present (another complexes manager) and that was that. Only saying to me that I am an at will employee and we feel that this is an unacceptable relationship. I was fired 3/3/16 at 2:00 pm as I arrived back from lunch.
 

ognireerf

Junior Member
My hearing lasted 1 hour and 42 min and this time the company brought my ex resident manager that didn't appear before. I wasn't prepared for questioning him but the judge did my job for me, destroying their case in 10 minutes. He even decided not to use the other 2 witnesses after 1 hr 30 min. claiming they didn't have anything to add. HAHA The Resident manager claimed in 1 email that I was half listening to him and I ignored him and then didn't like his direct order, but I did it anyway. Two days later my checks were approved and I should be receiving 10 weeks back pay today or tomorrow. I also managed to get $504 from them last week from a labor board claim for mailing me my final check instead of handing it to me. I am now looking into a retaliation/discrimination lawsuit against them. They conspired to get rid of me and did not follow there own policies when they didn't investigate managers allegations which were so weak it was laughable. The closing argument from company was "We did everything we could to resolve the conflict between the 2 but just couldn't get through to employee (me). It was very unfortunate." Pathetic!!!
 

cbg

I'm a Northern Girl
Based on what you have posted, I'm not seeing a lawsuit. It takes far more than prevailing in an unemployment claim to successfully support a lawsuit for either discrimination or illegal retaliation. Please note that not all or even most discrimination or what the average employee considers retaliation, is illegal.
 

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