An employee whose employment is terminated for unsatisfactory performance, and who meets other eligibility criteria, will be awarded unemployment insurance benefits. And, the experience rating of the former employer will be charged accordingly. However, an employee whose employment is terminated for misconduct will be disqualified from receiving benefits. And, the former employers experience rating will be unaffected.
From this distinction, we see that doing a bad job may or may not disqualify an applicant. How bad does performance have to be in order to amount to misconduct? This question can be particularly vexing when the undesirable conduct is tardiness. Most employees, and some decision makers within government agencies, consider tardiness to be a minor infraction. Some employers feed this perception by tolerating tardiness, or being inconsistent in their enforcement of attendance expectations.
Nevertheless, under certain circumstances, chronic tardiness does amount to misconduct, and will disqualify the offender from receiving unemployment benefits after termination of employment. The necessary circumstances are summarised in the August 10, 2006 decision in Matter of Van Beek v. Commissioner . To successfully contest a claim for unemployment insurance, an employer should be prepared to present convincing evidence that: (1) the employee had received warnings (written warnings are easier to prove), (2) the employee knew specifically that continued tardiness could result in loss of his job (not just another warning), (3) the employee was, in fact, late on the final day, and (4) the employer's decision to terminate employment was based on that last incident of tardiness (not some other reason).
Case law does not specifically require that an employer prove consistent enforcement of the attendance rule. However, if an applicant can point to more lenient treatment of other employees, the applicant can argue that he did not truly believe that tardiness was treated as a dischargeable offense by the employer, and may argue that the employer's true motivation in his case was something else, something that would not disqualify the applicant. This is another illustration of the importance of training supervisors to consistently apply the standards of conduct in your workplace. "No good deed goes unpunished."
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