| Summary | Inability |
| Disregard Or Neglect | Warnings |
| Good Faith Effort | Managers & Team Leaders |
Summary
To prevail, the employer must show the employee’s poor performance
was due to circumstances within his control. Thus, the claimant will not be
disqualified if he made a
good faith effort and simply couldn't do the job.
Good
Faith Effort
Good faith is not presumed when the claimant met the
standard in the past. If such is demonstrated, the claimant would have to
show their poor performance was due to a change in conditions or other
circumstances beyond their control.
Was The Discharge Due to Disregard, Neglect Or Something Else?
The fact that someone made numerous mistakes will
not automatically keep them from receiving benefits.
Rather, it must be shown their mistakes were caused by a conscious neglect or a
willful disregard of their job duties. Thus, if the job required a high degree
of discretion, talent or skill, the more likely they will be deemed not at
fault for their non-compliance.
The reason is that the law will not penalize
someone simply because they couldn't hack it.
Employers are in a much better position when the discharge was due to a failure to follow simple instructions. Examples of such include set procedures such as keeping a log, turning off a switch or maintaining a contact list. In each of these cases, compliance does not depend on the claimant's talent, discretion or skill. It's simply a matter of following orders.
Thus, the claimant will probably win if the employer proves simply that he was a poor sales man. Indeed, not everyone can be a salesman and some just don't make the grain. But it's a different matter entirely when the claimant could do the job but failed to keep a log or read the script. In that case, the claimant will be at fault because he had the power to keep his job and didn't.
See Housekeepers
Employees That Depend On The Work Of
Others
The discharge must be based on only the claimant's performance, not on the
performance of someone else. This makes it harder to win when the claimant is
a manager,
supervisor or team leader. Missed deadlines, failure to obtain reports and
other lapses can always be blamed on others.
See
It Wasn't Me, It Was Someone Else's Fault
See
More on Managers
To ensure the employee performs to the best of their abilities:
Set out the specific tasks to be to be done every day or every week. This
will keep your employees accountable and ensures they're following
your guidelines. Issue write-ups and
warnings for each time they fail to
comply with your standards. Your warnings should state precisely what was done
wrong and how it should be done right next time.
A well written warning will benefit everyone. Often, many employees just need a little guidance to get back on track. A well crafted warning will help the employee save their job and keep the employer from the costs associated with hiring a new person. For serious or persistent violations, give out a written warning stating that "further violations could result in discipline up to an including discharge."
Examples of Clear Cut Warnings
See DOL Rules and Law
See
Employer Proves Inability Not Fault
See
See Also
Poor Performance It Wasn't Me, It Was
Someone Else's Fault
The following Examples show the obstacles employers face and how to overcome them at the hearing
Claimant Failed To Make A Peanut
Butter and Jelly Sandwich
Claimant Shared Job With Coworker
to Sort Mail and Both Were Fired
Claimant Failed To Meet
Deadlines for Excel Sheets, and Power Point Presentation
Claimant Failed To Make A Peanut Butter and Jelly Sandwich
Claimant:
Yes, I was given two weeks to make my boss a peanut butter sandwich. And yes I failed to do so with full knowledge my job was on the line.
But let me tell you everything that happened.
As you know, a peanut butter sandwich is made up of peanut butter, jelly and two
slices of bread. It also requires a knife for the spreading. Now my boss
is very demanding. Of all things, in addition to everything else I do, the
man wanted the sandwich toasted.
Naturally I got to it right away. I immediately noticed we had the jelly but we were short on the bread and peanut butter. Our knife on the shelf was rusty and not up to task, so I immediately asked technology to build us a new one. I then requisitioned the bread from purchasing and on my own time went shopping for the peanut butter.
However, due to the recent hurricane, all the stores were out of peanut
butter. Worse, the knife from technology was so dull it couldn't cut the jelly.
It was then I learned that the purchasing department had lost my purchase order
for the bread. Determined to meet this deadline at all costs, I baked the
bread myself only to notice we didn't have a toaster. This was not my fault as I
had asked my secretary to lend me hers. However, she forgot and had left town
for the month.
So there it is judge. I did my best but it wasn't my fault.
Employer:
Yes, the claimant had a tough job that required he work closely with and
depend on others.
However, we didn't fire him because of others. The claimant was discharged
simply because he never followed set procedures.
When I asked him to make a peanut butter sandwich, I also told him that any delay must be communicated to me via email. In this way I could forward a report to the vice president and make sure we met all deadlines.
Previously, the claimant had a history of missing deadlines. Here is a prior written warning from when he failed to get me a jelly donut. As you can see, I told him he must email me each day so I know if there are delays in the task assigned to him. You'll note that the email urges him to keep copies for his own records and to cc the vice president. It was in this email that I explained his failure to email his daily progress reports could result in termination.
So we didn't fire him for fowling up the sandwich. We fired him because he never gave us written daily progress reports on the delays.
Claimant Failed to Sort Mail Along
With His Coworker and Both Were Fired
Claimant:
Yes, it was my job to sort the mail and stuff them into envelopes. But I was working side by side with another coworker who did the exact same thing. That is, when she wasn't goofing off on the Internet. And did she did that so often that usually I was the only one doing all the work. So naturally I fell behind. You'll note that both of us were blamed and both of us were fired. She was to blame.
So there it is judge. I did my best but it wasn't my fault.
Employer:
Yes, we fired both of them. But that's given we can prove the claimant was at
fault. The claimant was discharged because he wasn't dong his job.
Part of his job was to follow set procedures and email us if he had any problems
sorting the mail on time. He was warned that he must email a progress report to
us each day, even if just to say everything is OK. He was also warned that a
failure to do so could result in disciplinary action up to and including
termination.
Here is a warning signed by the claimant indicating he knew what was expected of him.
However, he failed to follow these procedures and that is why he was terminated.
Claimant Failed To Meet Deadlines for Excell Sheets, and Power Point Presentation
Claimant:
Yes, I was given two weeks to make a Power Point presentation. And yes I failed to do so with full knowledge my job was on the line.
But let me tell you all that happened.
The Power Point presentation was on selling cars. It required statistics from
marketing, invoices from accounting and sales figures from our sales department.
To make sense of these figures also required a new database from technology.
Naturally I got started right away. First thing I noticed was that the marketing statistics were from last year instead of this year. Further, accounting was backed up due to the recent audit, and the sales manager kept giving me the run around.
It was then I learned from technology that they couldn't fix all the bugs in
the database, which meant all the data would be useless anyway.
Determined to meet the deadline at all costs, I told every department
manager how important this was. However, they all forgot and there was nothing I
could do about it.
So there it is judge. I did my best but it wasn't my fault.
Employer:
Yes, the claimant had a tough job that required he work closely with and
depend on others.
However, we didn't fire him because of others. The claimant was discharged
simply because he never followed set procedures.
When I asked him to make the presentation, I also told him that any delay must be communicated to me via email. In this way I could forward a report to the vice president and make sure we met all deadlines.
Previously, the claimant had a history of missing deadlines. Here is a prior written warning from when he failed to prepare an Excel sheet on time. As you can see, I told him he must email me each day so I know if there are delays in the tasks assigned to him. You'll note that the email urges him to keep copies for his own records and to also cc the vice president. It was in this email that I explained his failure to email his daily progress reports could result in termination.
So we didn't fire him for missing the deadline. We fired him because he never gave us written daily progress reports on the delays.