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Employment Development Department
Employment Development Department

Misconduct MC 300 - Fact Finding Guide

Manner of Performing Work

A. General Questions, Provided for Situations not Covered in B. Through E. Below.

  1. What was the unsatisfactory job performance which led to the claimant's discharge?
  2. When and where did it occur?
  3. What is the claimant's explanation for the unsatisfactory performance?
  4. Did the claimant know how to perform the work? If not, why not?
  5. Did the unsatisfactory performance result from the claimant's breaking of a known employer rule?
  6. Did the claimant clearly understand the employer's instructions relative to how the work should be performed?
  7. Did the claimant know the possible result of his or her actions?
  8. What were the claimant's responsibilities?
  9. Had the claimant been involved before in same or similar incidents?
  10. What were the circumstances of these prior incidents?
  11. Had the claimant been warned or reprimanded for the same or similar incidents?

B. Accident

Claimant Discharged for Having had an Accident

Fact finding must concentrate primarily on establishing the degree of negligence, if any, involved. This necessitates getting specific facts from as many sources as possible as to when the accident occurred, how it occurred, who was involved, etc.

  1. What was the accident which led to the claimant's discharge?
  2. When and where did the accident occur?
  3. Who was involved and what resulted from the accident?
  4. What is the claimant's version of how the accident occurred?
  5. What is the employer's version of how the accident occurred?
  6. What are the versions of any witnesses as to how the accident occurred?
  7. NOTE: In the case of accidents which occurred away from the employer's premises, witnesses' versions frequently will have to be hearsay as reported by others.
  8. Did the accident result from the claimant's breaking of a traffic or other law?
  9. If the violation of a law is involved, was the claimant cited by the police?
  10. If cited, what was the disposition of the case?
  11. Did the accident result from the claimant's breaking of a known company rule?
  12. Had the claimant been involved in any prior accidents?
  13. What were the circumstances of these prior accidents?
  14. Had the claimant been warned or reprimanded for prior accidents?

Claimant Discharged for Likelihood of Accidents

Where the claimant was discharged for engaging in actions which could lead to an accident, fact-finding must concentrate on establishing whether the claimant's actions were wilful and on the possible results.

  1. What were the actions of the claimant which led to his or her discharge?
  2. What could have been the result of these actions?
  3. Did the claimant know the possible result of his or her actions?
  4. What reasons does the claimant give for his or her actions?
  5. Had the claimant been warned or reprimanded about his or her actions?
  6. When were these prior warnings or reprimands?

C. Damage to Equipment or Materials

  1. What did the claimant do to cause the damage?
  2. What is the claimant's explanation for what happened?
  3. Did the damage (property, life, etc.) result from the claimant's error in judgment?
  4. What could the claimant have done to prevent this damage?
  5. Did the employer have specific rules or instructions which, if followed, would have prevented the damage?
  6. If specific rules or instructions covered the situation, had these rules or instructions been transmitted to the claimant?
  7. Why did the claimant choose to deviate from the rules or instructions?
  8. Had the claimant ever made similar judgmental errors? With what results?
  9. Had the claimant ever been warned or reprimanded about his or her manner of performing work?
  10. Exactly what caused these prior warnings or reprimands? When were these warnings or reprimands given?

D. Quality and Quantity of Work

Where the claimant was discharged because of the poor quality of work or because of failure to produce the quantity of work expected, fact finding must primarily concentrate on establishing whether the claimant was capable of doing better work or increasing production. The claimant's work application and possible telephone contacts with former employers provide good sources of clues in determining if the claimant actually performed on the job less capably than he or she could have performed. However, it should be remembered that quality and quantity standards may vary among employers.

  1. What were the claimant's duties?
  2. What standards were set for those duties?
  3. Did the standards lend themselves to objective measurement or did they largely have to be interpreted according to someone's subjective opinion?
  4. In what way did the claimant's work fail to come up to standard?
  5. What is the claimant's explanation for his or her substandard work?
  6. Who judged the claimant's work (supervisor, employer's inspector, governmental inspector, etc.)?
  7. Did the employer maintain records on the claimant's work?
  8. NOTE: If the employer has records, ask the employer to read from the records rather than giving approximate figures from memory.
  9. What were the employer rules or instructions pertaining to the manner in which the claimant should perform his or her duties?
  10. Did the claimant understand these rules or instructions?
  11. How long had the claimant been performing these duties for the employer?
  12. What is the claimant's total experience (including experience with other employers, school training, apprenticeship training, etc.) in the type of work he or she was doing?
  13. Was the claimant's performance satisfactory at any time?
  14. If the claimant's work was previously satisfactory, what explanation does the claimant have for deterioration?
  15. If the claimant's substandard performance was due to factors within his or her control (such as poor eyesight which could be corrected by glasses), what had the claimant done to correct the situation?
  16. If the claimant had done nothing to correct the situation, why not?
  17. Had the claimant ever been warned or reprimanded about his or her work?
  18. When were these prior warnings or reprimands?
  19. What occasioned these warnings or reprimands?

E. Violation of Law

General

  1. What violation of law did the claimant commit?
  2. When and where did it occur?
  3. Does the claimant admit to the violation of law?
  4. Were there any witnesses? If no witnesses, why does the employer think the claimant committed the violation?
  5. Was the claimant arrested for the alleged violation? If arrested, what was the result?
  6. If tried for the violation, what was the verdict?
  7. Was the violated law one that the claimant was required to observe in the performance of his or her duties on the job?
  8. Did the violation stem from the employer's express orders or tacit approval?
  9. If the violation is minor, had the claimant been warned or reprimanded for similar violations?

Loss of License

  1. Did the traffic violation occur while the claimant was driving the employer's vehicle or at work?
  2. Did the claimant lose the license to drive because of the violation?
  3. If the claimant could no longer drive, was there other work available for the claimant?
  4. If the claimant did not lose the license and could still drive, why did the employer terminate him or her?
    • Due to cancellation of insurance coverage?
    • Due to increase in insurance premiums?
    • Due to the claimant's poor driving record?
  5. Did the violation(s) result from gross or recurrent negligence on the part of the claimant?