If I signed an item at the time of dismissal that included verbiage that the employer had terminated me for "poor performance" does that have any bearing on the adjudication?
A: Title 22, Cal. Code Regs. 1256-38(a) provides: "An individual's failure to perform properly or neglect of duty is wilful and misconduct if he or she intentionally, knowingly, or deliberately fails to perform, or performs in a grossly negligent manner, or repeatedly performs negligently after prior warning or reprimand and in substantial disregard of the employer's interests."
Absent wilfulness, gross negligence, or recurrence of negligence after warnings or reprimands, a claimant's failure to perform his or her work properly would not be misconduct.
"Poor performance," is not, without more, grounds for denial of benefits. However, I haven't read the document that you reference, so I can't try to judge how the unemployment hearings officer might view the document as affecting the burden of proof.
Since there was no relationship between the prior incidents where fault may have been found with the nature of my written communications, whereupon I agreed to be more circumspect in my emails, is it generally correct to draw the conclusion that if I did not renege and "overstep my bounds" as far as the unremarkable activity during the conference call, that I did not commit misconduct in the course of my job duties?
A: Your premise that there was no relationship would cause me to find in your favor. However, that premise may be false, i.e., there may be a relationship between the emails and the conference call. My approach, were I representing you would be to avoid the issue entirely, and instead show that the triggering event did not display any wrongful conduct, therefore, anything that happened prior thereto is irrelevant, since the employer apparently terminated you for your conduct in the conference call -- where nothing remarkable occurred.
Lastly, does it not have to be proven that I committed "gross misconduct" for me to be considered ineligible for UIB?
A: No. Repeated negligence or willfullness is sufficient without gross negligence.
Section 1256-38(d) provides:
(1) Repeated negligent performance after prior warning or reprimand and in substantial disregard of the employer's interests is misconduct where the employee has the ability and capacity to perform satisfactorily. Substantial disregard of the employer's interests is determined after consideration of the following criteria:
(A) The number of negligent acts or omissions.
(B) The span of time within which the negligence occurred.
(C) The seriousness of each incident.
(D) The similarity of the incidents.
(2) It is neither desirable nor feasible to establish arbitrary numerical limits or descriptions in determining the number, time span, seriousness, or similarity of negligent acts or omissions which will constitute an employee's substantial disregard of the employer's interests. Rather, the totality of the circumstances of each case must be considered.
Hope this helps.