Being out with the flu?

After reading all of your notes on the situation , i can see why they denied you . Every situation that is described contradicts the next. Get the story straight before going through all the trouble.

Hello,

After even further research over all the paperwork on my file that I received from the board of review I noticed a lot of discrepancies in when the employer said that i was terminated and what the dates are that i initially filled out on my original unemployment paper. The employer only sent in the one paper that is required for their part on why i was terminated. The only date they put on the paper was that i was fired on the 11th of NOV. and every other piece of paper that is one the hearing officers decision says that I was fired on the 12th. But what if I can prove that I went to work clocked in and what paid for the 17th?
It also says that I didnt work on the 12th and i did. It says it on the first paper i filled out and it it says that I was warned on or before the 5th of Nov. and the only warning I received was in late oct.
Thats another thing. every thing that the hearing officer wrote on his determination said ON OR BEFORE. It never even gave actual dates. Wouldn’t that be something that should be required?

Sorry for keeping this going for so long. I am going to talk to a lawyer sometime next week to see what they tell me. I have another appeal i can use to the board as long as i get it in there within 10 days.
I was hoping maybe a lawyer could walk me through what i should put in my next appeal letter since they obviously ignored it the first time.

That’s what you need Brandon .. a legal brief from an attorney.

Its been a while but I finally received my letter from the UI Board of review. They affirmed the hearing officers decision.
I received the letter today and after reading it I went to the unemployment office and obtained a copy of everything in my file. I was wanting to see what the ex employer had sent that apparently held so much weight against my case. I come to find out all they have in my file from the employer is basically hearsay testimony. By that I mean that the person whom did all the writing from their side was the hr lady.
Here is the thing though. When the hearing officer made his decision he put that they had given me more than 1 warning. In the paper from the employer it stats only 1 warning. And also in every paper from the unemployment that I have received says that I was terminated on the 12th of NOV. But in the hand written part from the hr. lady says I was terminated on the 11th.
They did not send in any evidence that constituted misconduct, even where it asked to provide a copy of the specific rule or policy that I violated that didn’t provide anything. But I did. I sent them the call out information sheet that I had obtained from my ex employer. I had also sent the letter from the nurse and her diagnosis.
Nothing I did mattered. No evidence that I provided that showed that I did not participate in misconduct mattered.
It seems to me that the Board of review took what the hearing officer said about denying me and just affirmed it without even reviewing my case or the evidence that was provided by me.
I have done my research and I obtained the TN bar associations take on being fired for misconduct and after reviewing this for a few months now I still can not see how I was fired for misconduct.
I am planning on seeing if I can get a free advice from an employment lawyer and see if they think that it should be tried in court.
I have been wrongfully denied and nothing I did mattered. There is seriously something wrong with this system and something needs to be done about it.
If they are not even going to follow by the actual law like they are supposed to do then why even have it?
I have been trying to find work and I have not been hired. I have been doing everything I can with the unemployment and it did not get me anywhere but stressed out and upset.

I have not written anything on here in a while.I have been waiting to find out what the board of reviews say about my appeal. They are telling me that it will take 8 to 10 weeks to get my decision. This is really getting frustraiting. I have been on top of this thing since it started submitting everything in a timly manner and I still have to wait another 2.5 months..this is crazy. I have been unemployed now for almost 5 months with no income. I can only thank god for my gf and her working so hard to keep us afloat.

I have contacted the appeal board and all they told me is that it will take 8 to 10 weeks.. Ok, yea i know that. I was said on the information they sent me. But why is it taking so long? seriously. This should really be an open and shut case. I was fired cause I had the flu. I know it the employer knows it even the hearing officer pretty much said it on his determination that was against me. This is not rocket science and shouldnt be treated as such.

Do you know how to report this kind of thing to the state or what to do? I have been waiting and waiting and apparently wasting my time filling out apps cause im not getting any feedback from prospect employers either. Im about at wits end here and dont know what else to do.

I guess the only thing i can really do is wait?
From what i understand is that you cannot speed up the board to make a decision. Do you think if i bothered them every single day that they would get on top of it so i will leave them alone?

Hi Brandon,

You might try sending them a utility shut off notice. It works in some states to speed thing along if you can demonstrate financial hardship .. it won’t make a difference as to the decision, but it might hurry a decision along.

I was doing further research when the question came to mind. From everything that I have read and what I understand a witness is a person who has first hand knowledge of what happen during my termination.

On my determination letter from the appeals dept it says that she was testifing for the employer as a witness.

As I said before a witness would have first hand knowledge or been there when it happen and she wasnt. The person whom fired me doesnt even work there anymore because he was a contract employee.

I know that he apparently sent information about my termination to the H.R. but that still doesnt give her first hand knowledge.

I am also going to go to the UI office and request to see the information that was presented in the case to see what they have sent in.

A question for you. If I find information saying that I was given a seperate warning besides the one that actually happen what do I do in that case?

I was not given any other warning besides the one about me being late to work. But on my letter it says that I was given an additional warning about my absences.

It seems as though if their paperwork says this I dont think I can do anything about it because it seems as though they are already going to take their side no matter what I say or I can prove.

I know myself that no other warning was given and the only other person that would have any knowledge of that warning would be the person that had given it. And might I add it was very unprofessional the way he was talking to me.

so all in all. I was late a few times mainly for an accident on the way to work and traffic or accidents on the interstate. I dont know if this matters in the case about me being late But I had to travel 36miles to work everyday..

But i did fax my stuff tonight.. My 3 page letter explaining my side and also explaining that I didnt receive another warning besides the one that I did receive. “I could have easily lied and said that I didnt even receive that warning because without my signature or without it in black in white expecially without my signature I could have easily said it didnt happen. But it did. And I didnt feel that it was incriminating to lie about.

I read that when you send a letter to the board of reviews that they will either take new evidence and make a new hearing or they will use any new evidence or what they already have and make another determination.

Is it more likly that they will just take my appeal letter and make another determination without even going to another hearing?

should I go have a consoltation with an employment lawyer here in TN?

Ok, thats the end of my rant. Ill keep you posted as I know new information.

Brandon,

If you can afford a consultation .. do it.
And “direct testimony carries more weight than hearsay testimony.

I am writing back about your comment about the written notice. Im not sure if it matters but the notice I had received was verbal. No actually written warning was ever givin Nor was anything ever signed to recognize if I actually understand the warning that was givin to me.

Not sure if I explained this but the sickness that I had was an ongoing thing untill I actually had time to rest and get over it completly. As what was said about me being sent home on the 4th of november and calling out on the 5th was for being sick with the flu.

The 5th was on a thursday and I went back to work that following friday. The following week I was out again for the same illness that i had not yet gotten over.

when being fired for whatever reason does the law state that while applying for UI your case will be based soley on the reason why you were fired and Not on previous occurances? Because I you keep saying that my hearing should have been based on what actually happen while I got fired and not the previous warning that I had received?

I have already faxed my letter to the board of reviews along with my call out information and the letter from the nurse.. I am also going to send everything in the mail tomorrow.. Im wanting to have all the bases covered to make sure they cant say that I didnt send it or they didnt receive it.

At this point it seems as though they are willing to do and say anything to stop me from getting the UI that i rightfully deserve.

That is a good point Brandon. Transportation problems and not getting to work on time is your problem and it would be fairly easy to prove that it was misconduct, but the point of the appeal was to argue that even if you were on a final written warning for attendance issues and knew your job was in jeopardy .. the illness was out of your control .. You actually had a nurse on standby and your mother to testify as to how ill you were .. and the hearing officer told you they wouldn’t be needed ..

Just so you know .. a strong appeal to a board of review .. focuses on how the hearing officer erred in carrying out the “rules of procedure” for an administrative hearing ..

You know .. somehow not ensuring that everyone’s right to due process was met. Maybe how he weighted the evidence that was presented .. failed to get someone to first waive a right .. when it comes to documents received or not.

Not to mention that there is probably a precedent in every state which addresses your exact situation of being on final warning and then calling off sick.

Research the case law Brandon .. you can get a free 24 hr. pass at fastcase.com

Its kinda long. 3 pages but it gives detailed information of the facts. Including about how they said that i was givin another warning which was un true and I noted that In the letter as did I give the definition of misconduct and how my being ill was not misconduct. As for any documents that may or may not have been sent by the employer I have no knowledge of what they have sent nor did i receive anything from them. I recall reading that if i was to submit any evidence that it was to be sent to the employer and the appeals department. I sent it to the appeals dept but not the employer since I could not locate their fax number.but I had asked if he received it and he said yes and i believe that any evidence that is submitted if any party dont agree with the evidence cause its not in their posession they should object to using it. Hr. did not do anything of the sort when I know that she heard me ask him cause it was at the very beginning of the hearing.im going to contact the ex employer and tell them to send me a copy of my file and any other information that they may have including to the hearing that i was not aware of.I may not be a lawyer but through all the legal matters I have been dealing with lately I have read alot of information and studied and studied and I know that i have been unfairly judged with everything that has been going on with this. I personaly wish I could sue the state for this lack of justice. I did everything that I could to not get termintated from that job including not being late after my first and only warning. Which brings me to this point. If i was givin a warning to not be late again or not to come back to work and would be terminated if I was a half second late wouldnt it have made more since if i was fired on the sole called day i was late on the 4th of november and not fired for being absent on the 12th a week later. Hmm. there seems to be something a little off about that. If you would like I can send you the letter that i wrote to the appeals department. I cant really send it hear cause of the 3000 character limit. just let me know.

I am going to write a bit from the letter i got.

During the period of time between sept21 and nov 4th claimant arrived late to work 2 or 3 times and he did not work as scheduled on 2 or 3 days. the employer told the claimant on or before nov 4th that it deemed his tardiness record unnacceptable.
on nov 5th claimant did not go to work as scheduled the employer responded by telling the claimant that the following day that it also viewed his absentee record to be unnacceptable.
The claimant was late to work on one occasion because he was involved in a accident on another becuase he was going to go to court but decided not to go.And the remainingdays due to traffic.he missed an entire day of scheduled work one day because he had to go to court and the remaining days including his final absence due to being ill.

The appeals tribunal holds that the employer has proven that the claimant because he engaged in behavior that rises to the level of misconduct connected with the work. the claimant is disqualified from receiving unemployment compensation benefits under TCA 50-7-303(a)(2)

Ok. It says on this letter that i was ill the last days i was fired and I was givin and they lied even on this letter about me getting another warning which did not happen.
It says that I can write a letter if I dont agree with the decision made.
I dont know what to do from this point. I feel as if im being mistreated in this case.
And the judge wouldnt even speak to my witness because he said he didnt need to hear her repeat what I just said.
They have taken my ex employers side and thats not right.
What can I do?

Whoa .. appeal .. it’s a bad decision which quite frankly is happening more and more.

The decision fails to take into account that the final incident was due to a good reason to be gone from work and one not within your control.

I guess I need to ask now if the employer submitted any documents for this hearing .. such as those warnings that were referenced.

Don’t forget .. this person does not have direct knowledge of anything.

I forget Brandon .. what state are you located in?

My schedule was Monday – Friday with the occasional mandatory saturday. The week i was fired there was no saturday to work.
To make this maybe a little more simpler. I was working at the GM plant here in tn that was stopping production at the end of 09. 2 days before thanksgiving actually.
I have been working for these ppl on and off for around 3 years and never had a problem till here just the time around. Everyone was getting fired including the person that fired me. He was a contract employee. So he was losing his job there as well as i would have also. There are ppl that still work there as it is a parts plant now. but thats neither here nor there.
Initially, I thought that was why they had postponed the hearing. I figured that maybe that were having trouble finding him since he was actually the firing person and the H.R. person had no direct knowledge of the incidents at hand. But he was not present and the hr lady didnt seem to happy about doing the hearing. Just the tone of her voice didnt sound like she really wanted to be doing it.
I was trying to be very respectful of both the hr lady and the officer. Yes, maam and yes sir type of respectful. which I noticed that she only copied it at the very end of the phone call when he asked if there was anything futher or if we had anything else to add.
I’m really hoping they get this determination out really soon so i will know what steps to take after this. My fingers are crossed also.

I am praying that this works out because i really need it.

I didnt say anything to the sort during the hearing if your wondering.But thats about all that I can really think of at the moment. If you have any other questions about what else happen that I wasnt clear about just let me know and Ill respond promptly

Brandon,

When we take a job .. there’s usually an attendance policy which we need to adhere to .. that should be no big deal for anyone interested in working, but what I know about UI benefits is that whether a person was treading on thin ice as far as attendance such as when a person is on a “final warning” .. the “final incident” that causes the discharge is of paramount importance to an employer .. because all that time they have spent following a progressive discipline policy .. so you know your “job is in jeopardy” can go right down the toilet if the “final incident” was for reasons “out of your control”. Illness can be one of those things.

You called out on the 12th and 13th .. yet you say you didn’t know you were fired until .. I think you said the 17th. This raises questions for me .. because I don’t know what a typical schedule for you was .. but the key point .. is that the employer fired you on the 12th and you called out due to illness .. therefore any subsequent absences are irrelevant and anything before the 12th don’t carry much weight either.

I’m not sure why the department denied you .. but trust me .. it’s common for the initial determination to be in dispute due simply to the fact that it’s based on an investigation of the “available facts” at the time.

A hearing is a full blown fact finder which digs down into the details of the actual event that caused the end of the job.

It was important to know that that team leader had the authority to fire you .. Otherwise there may have been something further for you to do .. The team leader had the authority to act as agent for the employer therefore that paper they gave you is relevant and damning as to what this person testified to.

It sounds like you might have submitted the employer’s policy .. which .. maybe they weren’t expecting .. and were unprepared for.

Be sure and update me so I can uncross my fingers:)

I sure hope it went as well as you think. And yes. I did call out on the 12th and the 13th. And was apparently fired on the 12th. Nothing else was ever sent to the hr department after that date.
I’ve been trying to figure out if the hearing officer did this in my favor. He had asked the hr about if the person that fired me had the athority to do so and she said yes. that was right after she had finished trying to tell me that I wasnt eligible for any call outs or anything like that when she knew that my group leader the person whom had the athority to fire me gave me the paper in the first place.
I just dont know how these things really go. I mean, its been a really long time since i first filed and got denied and at that point i had even told the person who called me about why i got fired what had happen and that I was out sick came back and I was fired.
But she ruled against me and took the employers side and I had gotten denied. So im just not sure if this is going to be like that and they are just going to rule against me or if they are actually going to take that I was sick and I shouldnt have been denied UI in the first place. And I wasnt able to send the letter from the nurse to the hr at the previous employer because i could not obtain their fax number so I sent it to the appeals department instead with a cover letter attached stating that I had tried to get their fax but couldnt and am sending it to them as evidence.. Im still not sure if he is actually going to use it or not since I didnt get to send it to the hr person.
I guess all there is now is to sit and wait..

I mean it .. it sounds like you did a good and and I’m hopeful for you ..

Was it Nov. 12th that you called out on?

I had my hearing today and it is done now. The hearing officer didnt neeed to speak to my witness because she would have told him the same thing that I did. That I was absent due to my illness and on what dates and since he already knew that he didnt need to speak to her. The employer did not have any witnesses. She was giving dates that I was late and had absences but none of her dates went before the beginning of november. The officer had asked her if she could provide him with exact dates of me being absent or tardy beyond the beginning of nov. She told him that she didnt have that information in front of her but she could go look it up if he could give her a few mins. He told her No.
I had explained about me being sick and about the call in proceedure that I was givin per my group leader. The only question she had asked me was why I felt that I could miss any days since during orientation she was the one that told us that we could not and we was not entitled to benefits. That is true but my group leader had givin me a call in paper that stated that I could miss up to 5 days and the call in number and so fourth. She apparently didnt believe that I could use that but the officer had asked her in the end if the person that terminated me had the ability to do so. She said yes. He had also had to interrupt her due to the officer asking her if she had any questions to ask me and she was asking me about the paper I had but she wasnt asking a question but more of getting upset and telling me that I wasnt supposed to be able to miss any days. and he stopped her in the middle and said that is not a question. the officer had asked me if I tried to do anything futher to keep my employment due to unfair termination and I told him no. The reason I did not is because with this company since ive been on and off with them for 3 years i know their proccedures. And also it wouldnt have benefited me any since I would have needed to be represented by a union rep and i was not. I faxed him the letter from the lpn that I had and he had it in front of him but im not sure if he is going to use it as evidence. he has the phone number of the nurse and i told him i could provide him with another number for my mother if he needed it. he didnt want the number.
I feel like this may be a toss up. I dont get the absolute feeling that I will surely win. I know that I stated that I was sick with the flu and he has my symptoms in front of him. Also, he asked her when i was fired. she said that i was fired on the 12th of november but i didnt find out about it untill i came back to work on the 17th. The person that fired me sent her an email on the 12th saying he was terminating my employment. And nothing was sent in about me coming in on the 17th and me actually being fired. He had also asked me if I had went to the doctor and I told him no that I didnt not have the funds nor the benefits to go to the doctor which is why i contacted a nurse instead.
what do you think?

So my appeal date has been changed to march 1st. It however is still a phone hearing. I had also obtained a letter from the LPN about my sickness and my symptoms and so on. She has her number at the bottom in case they needed to contact her. She said that she will try to answer the call if they do decide to call. I was however reading the information on the appeal letter and it said that if I wanted to submit any evidence or whatever that I would need to send it to the appeals department and also to the employer. Im not sure why I would need to send it to them since they didnt even give me a chance to explain or anything when i got fired. But I was planning on calling the appeals dept tomorrow and asking them if I really need to send a copy to them. But as for witnesses I have my gf whom was there to see it first hand and a letter explaining my sickness and symptoms by the nurse. Im pretty confident about going into it with what I have from everything that I have read makes me think I can win since it was in fact due to being sick. Im also guessing that their witness may have been the person who fired me which he no longer works there either. One last thing. Do you think it would be a bad idea to bring up the fact that they released privileged information about my termination to people it did not concern? I found out that I was fired before I even went back to work because apparently they told my stp dad and he told my mother and then she called me.

Hi Brandon,

The reason you must send (fax) the documents to the department and get them to the other party is because it is a phone hearing and the documents are new to the record. All parties have the right to see any documents. It’s very important to follow the state’s procedures for submitting documents.

When you send docs to both the hearing officer and the employer you want to do so in a way that enables you can verify receipt. I routinely saved fax transmittals and fed-ex delivery confirmations .. in case I needed to produce them.

As for your last question .. it’s irrelevant to the reason you were fired. There is no privilege under the circumstances you described.

But it brings up another potential witness on your behalf doesn’t it .. your mother.

She knows you were sick too:)

Brandon,

Okay, the employer somehow managed to have the hearing postponed .. most employers “Hate” to appear in person for hearings, so I’ll make the guess that whoever needs to be the employer witness had a good reason that a “claimant appeal” was postponed. This is not an easy thing for an employer to accomplish unless they did have a “valid reason” or were willing to lie about the reason.

But it’s what you have to deal with .. so buck up.

As far as the LPN witness .. yes she could appear by phone even if you are required to appear in person .. just make sure you follow the state procedure for getting someone to be your witness.

If you are worried that she won’t even be available by phone to testify .. ask her to write a statement for you .. which you could submit before the hearing, per procedure, to add a little weight to your testimony about the fact you were ill. It’s better than doing nothing.

Just stay calm Brandon. I know it’s hard, but don’t let your frustrations show at the hearing.

You will be acting as your own attorney .. this is essentially the piece of the puzzle that most claimants don’t get .. Imagine the impact of this if a claimant who is in desperate need of benefits let’s their emotional frustrations and desperation overrun the need to represent themselves well .. just as an attorney would.

You are basically doing a job you have absolutely no training for and the curve is steep, but you can do this.

That’s an unemployment hearing .. a mini trial and it has it’s own “administrative rules of procedure”.. which by the way, you should find .. just so you know what the rules are that the hearing officer must follow when conducting the hearing.

Look at it this way .. you have some extra time to get ready.

Here’s some links .. in case haven’t already found them.

This is what Tennessee tells employers

Tennessee rules for both unemployment appeal stages

Familiarize yourself Brandon .. it takes some of the nervousness out if you know generally what you should be able to expect.

I dont see why she wouldnt be a credable witness i was just thinking that she may not be due to all the things that has led up to this. Just today I got another call from the ui appeals department telling me that I will receive a new appeal date by letter within 5 to 10 business days. I didnt get to talk to the person directly so I called the appeals department and asked why it was postponed and she told me that she wasnt sure and there wasnt anything written down. She had told me that the only reason for an appeal to be rescheduled would be 2 reasons. 1 they had a good reason to reschedule it. and 2 they requested it to be in person.. I also have another witness that I had contacted while i was sick cause I wasnt sure what I should do about the flu that I had. She is a LPN home health nurse. But I have talked to her and she said that she will testify if need be to say that I actually was sick. But the only way that she could be contacted is by phone i dont think she will be able to be at the hearing or around while im on the call. So I figured that I should send in her number stating that she is a secondary witness. secondary since she didnt actually come to my house she diagnosed me over the phone. Im getting really frustrated with all this because I have been unemployed since last NOV. I have been certifying since then and just this month is when my appeal was supposed to be but now its going to be postponed for some reason or another. I been trying to find work but nothing has came up as of yet and I am between a rock and hard place right now and dont know what to do. Im waiting it out as long as I can and trying to be as patient as I cant but they are making it real difficult.
Im not sure if I had said this in the other posts but, last month I had contacted an ui rep at the career center and had asked her what was going on with me being paid because I had received a letter of determination of benefits so i figured that they had went ahead and accepted it and I was going to get my UI. Well, nope. She told me that all that was a letter of determination of benefits and all it was saying is what I COULD GET IF I WOULD HAVE QUALIFIED?

Brandon,

There’s not enough room for my answer here .. I will update with my own comment.

I made the appeal because they denied me when I told the lady that I was out with the flu. I did all the call in proceedured everyday that I was going to be out. It a call in system and you type in ur badge number and then press a number for why your going to be out. Thats what I did everytime I was going to be absent. My stp dad works there also and he found out that I was fired before I even knew about it. Which I feel that they really dont have the right to be telling people that im fired when they dont have the right to know. I would think that should be privileged information. But thats neither here nor there. I just need my unemployment because jobs are really hard to find around here and its been 3 months for them to get the appeal even started. I feel as if im intitled to it since I didnt do anything wrong. I was sick there wasnt much I could do about it. My only thing is if its going to matter to much if I dont have a doctors note because I dont and didnt have insurance. But I have a witness which is my girlfriend but I dont know if she is creditable?

Hi,

Why wouldn’t your girlfriend be a credible witness? Does she have direct knowledge that you were sick?

it is my appeal.