Employers proof of misconduct.

by Joanna

(Port Washington, WI)

I was fired from my job three months ago. I was told it was due to misconduct. My employer is accusing me of purposefully deleting voicemails in order to get out of responding to them. I was not given any examples or documentation to back up their claim. I explained to them that I didn’t understand their accusation while they discussed my termination with me and stated that there had to have been a mistake and if there was anything I could do to not lose my job. I was told the decision had already been made. I was asked if I had any further questions, I said no, but that I wish the issue had been brought to my attention earlier so we could have worked to an understanding of what was expected of my job performance in regards specifically to voicemails. I was promoted to that position after being with the company for nine months, had excellent reviews, volunteered for extra work, and even worked as a volunteer at company sponsored charitable events. I have not been written up at the company prior to my employment termination.

I was awarded benefits because my employer failed on two occasions to submit documentation to the Wisconsin Department of Workforce Development to support their accusation of misconduct on my part. I received a letter this week stating they have appealed the decision and I have a hearing next Wednesday.

I am confident that at the worst I had performed inefficiency or unsatisfactory conduct but not willful misconduct. I was told that my former employer has audio recordings of me deleting voicemails, but since I have not seen this evidence, I am unaware of how to prepare myself. Also, since they had not submitted this evidence during the fact-finding investigation how can I be sure it is legitimate? Thank you in advance for your assistance.

Hi,

First thing I need to tell you is that just after reading this here .. you sound like you are admitting to deleting voicemails. Did you?

Secondly, if you did not delete voicemails, why are you making statements such as this ..

I am confident that at the worst I had performed inefficiently or unsatisfactory conduct but not willful misconduct.

Maybe so, but that is not what the employer will be trying to prove with “audio recordings” or first hand testimony about what was said in the termination meeting.

It is this type of statement that only adds to the employers contention that you did whatever “willingly”. In other words, you’re helping the employer fulfill their burden of proof for firing you.

Did you read the commonly accepted definition of misconduct? It’s a Wisconsin decision.

Boynton Cab Company v. Neubeck (1941), 237 Wis. 249, 296 NW 636, the Supreme Court of Wisconsin stated:

“The term ‘misconduct’ as used in (the disqualification provision) is limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employee’s duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances or good faith errors in judgment or discretion

There is a big difference between inefficiency, inability and incapacity to handle voicemails when compared to being accused of “intentionally” deleting multiple voicemails to avoid having to respond to them as a matter of course of what the employer apparently promoted you to do.

The difference is all those words which define what can be seen as misconduct.

I am not saying that the employer can prove your culpability .. I’m telling you to not help them prove your culpability with a weak non-specific argument.

What’s your argument to rebut misconduct?