GUIDE SHEET 2
DISCHARGE

Discharge from a job for misconduct connected with the work is cause for disqualification. Misconduct may be defined as a willful or controllable breach of an employee's duties, responsibilities, or behavior that the employer has a right to expect. Stated another way, the misconduct may be an act or an omission that is deliberately or substantially negligent, which adversely affects the employer's legitimate business interests. Simple negligence with no harmful intent is generally not misconduct, nor is inefficiency, unsatisfactory conduct beyond the claimant's control, or good-faith error of judgment or discretion.

EMPLOYER INFORMATION MUST BE OBTAINED OR A REASONABLE ATTEMPT MUST BE MADE TO OBTAIN IT, IN EACH DISCHARGE DETERMINATION.

BASIC QUESTIONS AND FACTORS TO CONSIDER

A. WHY WAS THE CLAIMANT DISCHARGED?

1. It is necessary to establish as clearly as possible why the employer decided to discharge the claimant on that particular day. Often the employer will cite a "laundry list" of incidents which may have occurred over a period of time. An adequate investigation of this factor requires the adjudicator to pinpoint the incident(s) which led to the discharge. (Prior related incidents of unacceptable behavior are investigated below under "C" and "D" to establish the willfulness of the act.)

2. The behavior must have a direct adverse effect on the employer's business interests. Incidents which occur away from the work site and have no direct effect on the employer are generally not misconduct.

3. The discharge must be reasonably related in time to the act causing the separation. Misconduct is not establish if a substantial time period has lapsed between the act and the separation, unless the passage of time was required for completion of administrative procedures.

If the behavior is clearly not a willful disregard of the employer's interests, does not adversely affect the employer, or is not followed by discharge in a reasonably short period, the adjudicator need not investigate further.

B. WHAT WERE THE CONDITIONS OF WORK?

In "A" above, the adjudicator must pinpoint what the claimant did. Here the adjudicator must discover what the claimant should have done. The expected behavior may be outlined specifically in a verbal or written employer rule, union agreement, practices or conduct peculiar to a particular industry or job, a law or regulation which governs health or safety practices, or may be covered by commonly accepted standard employment practices.

C. WHAT DID THE EMPLOYER DO TO KEEP THE EMPLOYER/EMPLOYEE RELATIONSHIP?

This factor focuses on how the employer tried to control or prevent the behavior that resulted in the discharge. This information is necessary to establish both the reasonableness of the employer's action and the claimant's knowledge of the result of the conduct. Gross misconduct or serious violations of common rules of employment (drunkenness, unprovoked insubordination, stealing from the employer, etc.) Need not be preceded by employer control, prevention, or warnings to constitute misconduct.

If the claimant denies that warnings were given, the name of the person who issued the warning(s), the number of warnings, the specific behavior leading to each warning, dates of warnings and the method used must be documented. If the employer condoned the behavior in the past, this too must be documented. The employer's actions in similar situations involving other employees may need to be investigated as well.

D. WHAT DID THE EMPLOYEE DO TO KEEP THE EMPLOYEE/EMPLOYER RELATIONSHIP?

This factor focuses on the degree to which the claimant may have been able to prevent or control the events that resulted in the discharge. Control refers to the individual's knowledge of the required behavior and the ability to reasonably foresee and take corrective action. Is there any question of whether or not the claimant was aware of the conditions of work?

If the employee was warned about the specific behavior, what did the employee do to modify his/her behavior to remain employed? Were there uncontrollable circumstances hat caused the claimant to "fail?" Or, knowing that the employer was unhappy with past performance, did the employee persist in the unacceptable behavior? What specific efforts did the claimant make to alleviate the situation?

HINT: If the adjudicator failed to pinpoint the reason for the discharge, enter "I" (Inadequate) for Element No. 19.If after initial fact finding, it has been established that any of the following situations exist, further fact finding is not required.

• Both parties agree there is no misconduct (e.g., inefficiency)
  
• There was no adverse effect on the employer (e.g., personality conflict)

• The behavior was not work connected or occurred in the distant past

• Gross misconduct is established (e.g., theft)

An investigation of actions the employer took to maintain the employer/employee relationship is necessary unless one or more of the conditions described above existed. If there is disagreement between the claimant and the employer about warnings or condonation, information must be obtained from both parties. The employer must be asked to furnish information about the time, place, method, and content of the warning(s). If the specifics are missing when needed, enter "l" for Element 19 (Employer Information).

If the employer alleges that a rule, agreement, law, or regulation was broken and the claimant denies the allegation, the documentation must include specific information about he particular condition that was breached.

If the claimant repeated an offense after being warned, documentation must show that he claimant was given opportunity to explain any extenuating circumstances which might have justified the act. Merely repeating an offense after being warned does not automatically establish misconduct. If the fact finding does not show why the claimant repeated the offense, enter "l" for Element 18 (Claimant information).

Fact finding

A. REASON FOR DISCHARGE

1. Claimant's actions, omissions, or circumstances

• Specific nature of act and its seriousness

• Nature of circumstances not within claimant's control

• Claimant's initiative to modify behavior to retain job

2. Adverse effect of the claimant's behavior or omission

on employer

• Cumulative effect of the behavior if behavior is repeated

• Employer's contentions regarding adverse effect
  
  

3. Relationship of claimant's behavior to discharge

• Length of time between the behavior and the discharge

• Employer's termination procedures

• Reasons for belief that there is, or is not, relationship

Between the claimant's actions and the discharge

B. CONDITIONS OF WORK

1. Employment rules or agreements

• Written or state rules, requirements, and agreements

• Job practices peculiar to the particular job

• Union agreements

2. Industry or job practices

• Safety practices, conduct peculiar to a job or industry, language, conduct of job, etc.
  

3. Law or regulatory provisions

• Governmental standards pertaining to health and safety
  

4. Standard employment practices

• Conduct expected of employees such as attendance at work and respect for rights of   others
  
  

C. EMPLOYER'S EFFORTS TO CONTROL OR PREVENT

1. Warnings and/or condonation of the claimant's behavior

• Employer action in similar situations involving other employees

• Number of warnings

• Methods used to communicate warnings

D. CLAIMANT'S EFFORTS TO CONTROL OR PREVENT

1. Claimant's knowledge of working conditions

• Agreement(s) at time of hire

• Change(s) in company policy

• Other employees' knowledge of rules

• Methods by which rules and agreements were communicated
  
  

2. Claimant's actions to provoke or his/her efforts to improve or prevent the situation

• Claimant's conduct which aggravates situation

• Specific efforts on the part of claimant to alleviate the situation

• Extenuating circumstances that caused the claimant to Act as he/she did, e.g., personal reasons, transportation  problems, degree of care required by job

• Frequency of occurrence