The "burden of proof" rests with the employer in cases involving a discharge. The employer must prove that the incident(s) which led to the former employee's discharge, amount to misconduct as defined by the applicable state statute. Misconduct can be established by the violation of a reasonable employer rule or expectation. The employer must show that the former employee's actions or omissions to act were willful and either actually harmed or had the real potential to have harmed the employer's business. Acts of inability, poor judgment, and good faith errors will generally not be sufficient to establish misconduct.

Witnesses should be prepared to provide the initial background information regarding the former employee's employment, describe the final incident that lead to the discharge, discuss prior disciplinary action and relevant company policy/procedure. Additionally, the witness must establish what impact or potential impact the former employee's action(s) had on the employer's business, i.e., monetary loss to the employer. Also, note that an isolated instance will generally be insufficient to establish misconduct. Verbal and written warnings that were given for the same reason as the discharge reason are important to show misconduct.

If the final incident is within the control of the employee or they could have prevented this final incident, then it is a case worthy of pursuing. However, if the final incident is beyond the employee's immediate control, then this may be a case which cannot be won. An example might be a discharge for tardiness - the final incident being when the employee's car broke down or they may have had to take their child to the hospital because of an emergency. These are situations the employee could not have prevented.

Tammy Mullin