5edd Bmw Code
Cortney Ruic
When a claimant is discharged from his or her most recent work, there is an issue under Section 1256 of the California Unemployment Insurance Code (UI Code) which needs to be resolved to determine the claimant's eligibility. This section discusses the general principles involved in such determinations.
"Discharge" as used in Section 1256 means the claimant did not voluntarily quit the job, and was not laid off for lack of work. Instead, the claimant was ready, willing and able to continue working, but the employer would not permit the claimant to do so, even though there was no lack of work.
Occasionally, it is not clear, and it is necessary to decide, whether the claimant voluntarily quit or was discharged. According to Precedent Benefit Decision P-B-37, issued by the California Unemployment Insurance Appeals Board (Board), in determining whether there has been a voluntary leaving or discharge under UI Code, Section 1256, it must first be determined who was the moving party in the termination. Generally, if the claimant left employment while continued work was available, then the claimant was the moving party and the separation is a voluntary quit. If the employer refused to permit the claimant to continue working although the claimant was ready, willing, and able to do so, then the employer was the moving party, and the separation is a discharge. Sometimes, an employer may allow an employee to voluntarily quit, instead of discharging the employee, so that the employee's work record will "look good." In such a case, the employer remains the moving party and the separation remains a discharge. For a detailed discussion of the general principles involved in determining whether a given separation is a voluntary leaving or a discharge, see VQ 135, Voluntary Leaving or Discharge. Also see VQ 135 for a discussion on termination by "Mutual Agreement or Mutual Misunderstanding."
A discharge from the military service will not raise an issue under Section 1256 of the UI Code. If the discharge from the military service is under dishonorable or other than honorable conditions, the issue is whether the military wages can be used to establish the claim.
When the employment ends because of a contract, there is no "discharge" as the word is used in Section 1256 of the UI CODE. In P-B-275, the Board held that an employment relationship is a contractual one, whether express or implied, and the termination of an employment relationship in keeping with a specific contract of employment is binding upon the employer and the employee. Neither party is legally obligated to offer or accept a new contract, and a claimant who completes a specific period of employment and becomes unemployed under its terms is not disqualified under Section 1256 of the UI Code. However, it should be noted that if the employer offers a new contract, and the claimant refuses to accept it, there would be a suitable work issue.
The Board and the courts have interpreted the word "for" in "discharge for misconduct" to mean that there must be a causal relationship between the act of misconduct and the discharge itself. There must be one or more acts which can be defined as misconduct and which directly cause the claimant's discharge for the claimant to be found ineligible. A claimant can commit an act of misconduct and can be subsequently discharged by the employer but unless he or she was discharged because of the act of misconduct, it could not be said that he or she was discharged for misconduct.
In Precedent Benefit Decision, P-B-192, the claimant engaged in a physical encounter with a fellow worker, a year before he was discharged. This resulted in a strained relationship between the claimant and the co-worker, which continued until the claimant's discharge. This situation made it difficult for the claimant to remain in his job. Once, he took steps to notify the employer that he was quitting, but he did not quit. He then went on a vacation, expecting to return at its conclusion. Four days later he was discharged because the co-worker with whom he had the altercation and another worker served the employer notice that he must either dismiss the claimant or lose their services. Admittedly, the claimant was a man of quick temper. The employer contended that the claimant was a troublesome employee, and the discharge was for misconduct. The Board disagreed and stated:
[T]he primary reasons which motivated the employer in discharging the claimant were the latter's "unfortunate disposition" and his alleged inability "to get along with his fellow employees." Standing alone, these reasons do not fall within the definition of misconduct
. . . . Had the claimant been dismissed after the altercation with the co worker whose complaint set his discharge in motion, that termination would have been for misconduct, as the claimant freely admits. But though this incident may have had some influence on the employer's decision to discharge the claimant, it was not the basic reason for the discharge. . . A direct and proximate causal relationship between specific acts of misconduct and a discharge must be shown if a disqualification for benefits is to be assessed for such acts.
The claimant, a bookkeeper, embezzled $250 from the employer to keep her son from going to jail. The employer discovered the embezzlement but, because of the circumstances, decided to give the claimant another chance if she would repay the money in weekly payments. Two weeks later, the employer concluded that the probability was high that the claimant would again embezzle due to the need for money for her son, and discharged the claimant.
The discharge was not for misconduct since the direct cause was the employer's conclusion that the claimant would embezzle again. The indirect cause was the prior embezzlement. The fact that the discharge had an indirect connection with the prior embezzlement does not mean the discharge was for misconduct.
The claimant was employed as a pantry woman. Two days prior to her discharge, a new restaurant manager was hired to improve the efficiency of the organization. The claimant worked only one shift under the new manager and was dismissed. When contacted by a Department Representative for the reason for discharge, the manager stated that the claimant was generally inefficient and read magazines while on duty. However, the manager also stated that at the time he discharged the claimant his primary concern was hiring someone who could also cook and, in fact, he had someone in mind for the job.
The claimant repeatedly overstayed his lunch hours and coffee breaks and was repeatedly warned. He finally was told that if he continued overstaying his rest periods, he might lose his job. Immediately prior to his discharge, the claimant was shown a diagram of the way the company wanted books displayed for sale. The claimant refused to display them in that manner, and was discharged because of his record of overstaying rest periods and his refusal to display books as instructed.
In such cases, it is necessary to get specific facts from the employer to determine the basic cause of discharge. The specific facts behind such generalities and conclusions may range from intoxication on the job to an employer's desire to hire his nephew for the job.
An employer has a right to discharge an employee, and this right is limited only by applicable labor laws and/or the terms of the collective bargaining contract, none of which should concern the Department. Consequently, in determining if the claimant is eligible under Section 1256 of the UI Code, the employer's right to discharge a claimant will not be questioned. However, the fact that the claimant was discharged does not necessarily mean that the claimant was discharged for misconduct.
Likewise, the employer's statement that a claimant was discharged for "cause" does not necessarily mean that the claimant was discharged for misconduct. Invariably, an employer will have a "cause" (or reason) for discharging an employee.
The definition of misconduct must be considered in the light of the basic purpose of the unemployment insurance program. As expressed in Section 100 of the Unemployment Insurance Code, this basic purpose is that unemployment benefits are for persons involuntarily unemployed through no fault of their own.
. . . 'fault' means intentional action which the person who claims benefits foresees, or which it may be reasonably inferred he must have foreseen, would tend to produce or prolong a period of unemployment and from which a reasonable person in the claimant's circumstances and with the claim- ant's knowledge and understanding, desiring employment and foreseeing such loss of employment, would necessarily refrain.
The term "misconduct" does not necessarily imply an evil or corrupt motive or an actual intent to injure or damage an employer's interests. It is sufficient if the act, or the failure to act, on the part of the employee be committed or omitted under such circumstances as would justify the reasonable inference that the employee should have known that injury or damage to his employer's interests was a probable result.
Neither is lawbreaking necessarily misconduct under the UI Code. Many types of lawbreaking could be indulged in by an employee without the lawbreaking necessarily constituting misconduct. See G. Illegal Activities, in this section and MC 350, Off-the-Job Conduct, for a detailed discussion on whether a criminal act constitutes misconduct.
The "material duty" exists in many ways. Some common examples include showing up for work, performing work to the best of one's ability, obeying a reasonable employer order and refraining from fighting or sleeping on the job. If the claimant's act does not violate a material duty to the employer, the discharge would not be for misconduct.
[R]equires an analysis to determine the severity of the employee's actions. Where the ordinary negligence of the claimant has resulted in the minimal injury to the employer's interests, the breach is not substantial unless the claimant has been previously warned or reprimanded about this type of negligence and has the ability and capacity to perform satisfactorily. Thus a janitor who negligently fails to empty a wastebasket or dust a desk and is discharged is not disqualified for misconduct unless there had been previous warnings or reprimands for this type of conduct and the janitor has the ability and capacity to perform satisfactorily.
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