|
REFEREE |
This is a hearing in
the case of Ms. Claire Christman. My name is Arthur Johnson. I am the
Appeals Referee with the Employment Security Appeals Division. I am here
to hear and decide this case. Present at today’s hearing are Ms.
Christman, the Claimant, and Mr. Sam Everett, Co-Owner of Emily’s Café.
We are here today
because the employer, Emily’s Café, appealed the decision of the local
unemployment office to award benefits to Ms. Christman.
I will make a new
decision in this case and I will base my decision on the evidence
presented at today’s hearing. I’m not bound in any way to follow the local
unemployment office’s decision.
As you can see,
this hearing is being tape recorded. Witnesses will take an oath to tell
the truth and if you have any documents that you want considered, each
document will be marked as an exhibit before being considered.
Now, as for how
this hearing works…Basically, all testimony is taken by questions and
answers. I’ll ask each of you questions. Then when I finish, each of you
will have time to ask each other any questions. Now, is there anything
about this procedure which you don’t understand? |
|
CHRISTMAN |
When do I get to ask questions? |
|
REFEREE |
I’ll help you keep
track of when it’s your time to ask or answer questions. |
|
NARRATOR |
The scene you just
witnessed is the beginning of an unemployment compensation appeal hearing,
like the hearing you will attend. This program is designed to help you
prepare for that hearing. Keep in mind that what you are about to see are
short depictions of real hearings. Your hearing will be longer and go
into greater detail.
Federal and State Law
entitle you to a fair hearing if you disagree with a local unemployment
office’s decision to grant or deny benefits. A fair hearing means an
impartial Appeals Referee will decide your case, after considering all of
your testimony and evidence. The Employment Security Appeals Division
will assign an Appeals Referee to hear your case. It’s their job to make
sure you understand the proceedings…and have the time you need to present
any information relevant to your case. But there’s a lot you can do
before your hearing to make sure you’re ready.
(GRAPHICS):
BE
ON TIME FOR YOUR HEARING
First, a few
basic ground rules: It is very important that you be on time for your
hearing. If you don’t show up, you will likely lose.
(GRAPHICS):
WITNESSES AND EVIDENCE CAN BE PRESENTED
You should bring
witnesses and any documents or other evidence which could help you with
your case…even if these documents or witnesses were presented before at
the local unemployment office.
(GRAPHICS): ONLY
EVIDENCE PRESENTED AT HEARING WILL BE CONSIDERED
In order to keep
your hearing truly impartial and independent of your local unemployment
office, only evidence presented at the appeals hearing will be considered.
This is very important. Papers, letters, statements…any evidence that was
presented at the local office will normally be introduced as an exhibit at
the appeals hearing. To be safe however, you should bring extra copies of
these and any other relevant documents with you.
(GRAPHICS): PREPARE
If there was
only one point that we could make at this time it would be “Prepare!”
This appeal hearing will likely be your last opportunity to present your
case, so do it thoroughly. Right now, let’s go back to the hearing we
were watching. In this case, the former employee believes she was fired.
The employer disagrees and says she quit. The appeals referee will
decide, after hearing the evidence. Now, as you watch the hearing, ask
yourself whether the people involved are properly prepared. |
|
REFEREE |
Do you swear or affirm
that the testimony you are about to give is the truth to the best of your
knowledge and belief? |
|
CHRISTMAN |
Yes. |
|
REFEREE |
When did you work at
Emily’s Café? |
|
CHRISTMAN |
Up until June 5th…
for six months. |
|
REFEREE |
You were a waitress? |
|
CHRISTMAN |
Yes. |
|
REFEREE |
What were your hours? |
|
CHRISTMAN |
I worked 6:00 a.m. to
2:00 p.m., Monday to Friday. |
|
REFEREE |
Who was responsible
for scheduling your hours? |
|
CHRISTMAN |
Emily, the boss, she
always put up the schedule on Fridays before the weekend. But I always
had the same schedule. |
|
REFEREE |
What was the next day
you were scheduled to work after June 5th? |
|
CHRISTMAN |
I never was. Emily
took my name off the schedule. Like I said, I worked pretty regular hours
and I generally don’t check the schedule unless I know there is going to
be some change. So anyway, I got a call on Saturday night from Helen,
she’s another waitress, and she said Emily, my boss, had taken my name off
the schedule. She said Emily told her that she wasn’t going to schedule
me anymore. So I tried to contact Emily that weekend but she was in
Boston. So, on Sunday I went in to check it out and my name wasn’t on the
schedule. So, Monday I went and filed for unemployment. |
|
REFEREE |
Why didn’t you ask
Helen to come here and testify? |
|
CHRISTMAN |
Helen? Why would I?
I mean, she’d say the same thing I just did! I didn’t think it was
necessary. Besides, she still works there and coming here to get in an
argument with her boss…I didn’t think she’d do it! |
|
REFEREE |
OK. Is there anything
else? |
|
CHRISTMAN |
No. |
|
REFEREE |
Mr. Everett, do you
have any questions of Ms. Christman? |
|
EVERETT |
She’s wrong, Emily
never said she was fired! |
|
REFEREE |
Mr. Everett, this is
your opportunity to ask questions. In a minute I’ll hear your testimony. |
|
EVERETT |
OK. Did you hear
Emily say you were fired? |
|
CHRISTMAN |
Well ...... No. |
|
EVERETT |
OK. Didn’t you tell
Helen you were going to quit anyway because it was too hard to work and
take care of your son? |
|
CHRISTMAN |
No. I’ve complained
about how hard it is to work and raise a child …but I never said I was
gonna quit. Don’t you go trying to lay this on me. |
|
EVERETT |
What? What are you
talking about? |
|
CHRISTMAN |
You know exactly what
I’m talking about … |
|
REFEREE |
Ms. Christman ... Mr.
Everett ... We’re just here to gather the facts, not have an argument.
So, unless you have any other questions of Ms. Christman, Mr. Everett, I
think we can go ahead to your testimony. |
|
EVERETT |
OK. Nope ... No, I
have no further questions. But I don’t care what she says, she quit ...
didn’t fire ... |
|
REFEREE |
Mr. Everett, you’ll
have all the time you need to tell your story. But first I must swear you
in. Will you raise your right hand? Will you swear or affirm that the
testimony that you are about to give is the truth to the best of your
knowledge and belief? |
|
EVERETT |
Yes. |
|
REFEREE |
What is your position
at Emily’s Café? |
|
EVERETT |
I’m the general
manager and co-owner along with Emily, my wife. |
|
REFEREE |
And who is responsible
for making the schedule of the waitresses? |
|
EVERETT |
Emily. |
|
REFEREE |
Was Ms. Christman
scheduled to work the week of Monday, June 7? |
|
EVERETT |
No, she would have
been if she called in or come in on the 7th, instead of filing
for unemployment. Emily did take her off for a week just so she’d sit up
and take notice. I mean, she was coming in late and leaving early way too
often. We were fed up. But Emily never fired her…and she never said that
to Helen. |
|
REFEREE |
Why isn’t Emily here
today to testify as to what she told Helen? |
|
EVERETT |
It’s nine in the
morning ... we’re busy. It was easier for me to come. |
|
REFEREE |
Yes, but she was the
one who had the conversation. So her testimony would be more reliable…she
was there. Ok, is there anything else? |
|
EVERETT |
No. That’s it. We
just wanted her to pay attention. Come in on time. You know! |
|
REFEREE |
Ms. Christman, any
questions? |
|
CHRISTMAN |
Why didn’t you call me
and tell me that I was off the schedule? |
|
EVERETT |
Well we figured you
would come in at your regular time on Monday and we would discuss it. I
think you’re more interested in collecting unemployment than you are in
keeping your job! |
|
CHRISTMAN |
That’s not true! |
|
REFEREE |
If you have no other
questions Ms. Christman ... Now that you’ve heard Mr. Everett’s
testimony…do you have anything else to add? |
|
CHRISTMAN |
Well ... Like I said
... they were just looking for a way to get rid of people! |
|
EVERETT |
That’s a lie. We laid
off one waitress and that’s it. |
|
REFEREE |
Mr. Everett….Ms.
Christman…..Do either of you have anything new to add? |
|
EVERETT |
No ..... I guess not. |
|
CHRISTMAN |
No. |
|
REFEREE |
OK. That being the
case, this hearing is officially closed. Based on the evidence presented
at this hearing I will be making a decision in writing which you both will
receive in the mail. And I thank you for your participation. |
|
REFEREE |
This is a case of poor
preparation on the part of both these people. Ms. Christman could and
should have brought Helen here to testify that she heard Emily say that
she was fed up with Christman and was not going to schedule her anymore.
And Mr. Everett should perhaps have stayed at the café and sent Emily
instead, since Emily had more direct information about this case. It’s
important to think these things through. Both these people were relying
on what someone else had told them, Ms Christman heard from Helen; Mr.
Everett heard from his wife. That’s called hearsay….and it’s admissible
as evidence but it’s not as reliable as testimony from someone who
directly witnessed the events. |
|
NARRATOR |
As you can see, an
appeal hearing is carefully controlled by the appeals referee. This is
done to make sure each person has the same opportunity to present their
case. Here some important points:
(GRAPHICS):
Hearing
Notice
Once the Appeals
Division receives an appeal, it will be scheduled promptly. You will be
sent a notice stating when and where the hearing is to take place. Read
this notice carefully. Like this video, it will help you prepare for your
hearing. Carefully note the date, time, and location of your hearing. If
you are unable to attend, you may request a postponement of the hearing.
Postponements are granted only for good cause, such as a serious illness
or an emergency. Our telephone number is right on the notice. Granting of
a postponement is at the discretion of the Appeals Division. Late
requests will usually be denied.
(GRAPHICS)
CALL
IF YOU CAN’T OBTAIN AN INTERPRETER OR IF YOU HAVE OTHER SPECIAL NEEDS
You are expected
to provide your own competent interpreter if one is needed. If you or any
witness you expect to bring does not speak English well and you cannot
obtain an interpreter, call us immediately. If you have other special
needs, you should also call us immediately.
(GRAPHICS)
YOU
MAY HIRE A LAWYER
You may be
represented by a lawyer if you choose. However, you will receive equal
treatment whether you hire a lawyer or not. If you feel your case is
complicated and you’re uncomfortable presenting it yourself, you have the
right to have a lawyer present, at your own expense. If you feel you need
a lawyer but cannot afford one, you may contact any Appeals Division
office or Job Center for a list of organizations that may provide free or
reduced cost representation to qualified persons.
(GRAPHICS)
YOU
MAY REQUEST TO SUBPOENA WITNESSES OR DOCUMENTS
A subpoena to
compel the attendance of uncooperative parties is possible if they are
critical to your case. The same applies to records that you can not
otherwise obtain. If you feel you need a subpoena, notify the Appeals
Division immediately. The appeals referee will determine whether the
subpoena is necessary.
Let’s take a
look at another hearing. This time you’ll notice both a witness and a
lawyer are present. Once again, notice whether the participants seem
prepared. |
|
REFEREE |
Ms. Soule, do you
swear that the testimony you are about to give is true to the best of your
knowledge and belief? |
|
SOULE |
I do. |
|
REFEREE |
Ms. Soule, what was
your position at the nursing home? |
|
SOULE |
I was a unit
coordinator. |
|
REFEREE |
And what were your
major responsibilities? |
|
SOULE |
I had to supervise
nurses and aides. Keep records of resident care. And sometimes help with
the care myself. |
|
REFEREE |
Would you explain your
reason for leaving. |
|
SOULE |
Well, it started when
I injured by back my second week of work. I was helping lift a patient
out of her wheelchair into bed when I felt this pain in my back. I said
something to Joan Abromson, a nurse’s aide who was helping me….and then I
went back to work. I didn’t think it would be so bad…and it kind of
wasn’t for a day or two…but it kept getting worse. And then one day I
just couldn’t stay on my feet so I called in sick. I felt a little better
the next day so I went back to work. But after that it just kept coming
back. |
|
REFEREE |
Did you see a doctor? |
|
SOULE |
Yes, Dr. John Morgan.
His comments are in this letter. |
|
REFEREE |
I will mark this as
claimant exhibit number 1. Mr. Osgood, I believe you were sent a copy of
this letter? |
| OSGOOD |
Yes, I’ve seen it. |
| JORDAN |
As attorney, I
object. This letter is hearsay. Dr. Morgan is not here for questioning,
so I don’t see how we can accept this letter. |
|
REFEREE |
Let me review the
letter. It’s a diagnosis of Ms. Soule’s back condition and course of
treatment. It is sufficiently reliable. The doctor has no interest in
the outcome of this case. It contains medical diagnostic information. I
will overrule your objection.
Ms. Soule what effect
did your back condition have on your ability to work? |
|
SOULE |
Some days my back was
OK, other days not so well. I came in when I could, and then he started
hassling me, threatening to fire me, so I left, |
|
REFEREE |
Would you explain what
you mean when you say he hassled you? |
|
SOULE |
He kept threatening to
fire me if I didn’t show up for work every day. I injured myself at work
and I figure I should be able to get well without being hassled. |
|
REFEREE |
How many times ... did
he, as you put it, threaten to fire you? |
|
SOULE |
Practically every day
I worked. |
|
REFEREE |
Is there anything else
Ms. Soule? |
|
SOULE |
No. |
|
REFEREE |
Mr. Jordan, any questions? |
| JORDAN |
Yes. Isn’t it true
you didn’t file a workers’ comp claim until a week later than you say the
injury occurred? |
|
SOULE |
Yes, but as I said, I
..... |
| JORDAN |
Just answer the
question Yes or No. |
|
REFEREE |
Ms. Soule may complete
her answer. Did you wait a week? |
|
SOULE |
Yes ... as I said, I
just didn’t think it was that serious. |
| JORDAN |
I have no other
questions. |
|
REFEREE |
OK. Ms. Soule, you
may bring in your witness. |
|
REFEREE |
Ms. Abromson, what was
your relationship to Ms. Soule? |
| ABROMSON |
I worked with her on
the East Wing….Actually I worked for her…She was the unit coordinator. |
|
REFEREE |
As I understand it, on
February 23rd, Ms. Soule helped you lift someone from a
wheelchair into bed. |
| ABROMSON |
That’s right. |
|
REFEREE |
Tell me what happened. |
| ABROMSON |
Well, Cathy was on the
patient’s right side and I was on the left and we were lifting her from
under the arms, like we’re trained to do, and Cathy made a little sound…
“OW” like that. And then she grabbed her back. So I asked her what was
wrong, and she said, “My back.” And so I got someone else to help me and
Cathy went out front. |
|
REFEREE |
Did she make any
comments later that day or within the next few days? |
| ABROMSON |
No. |
|
REFEREE |
Is there anything
else? |
| ABROMSON |
No, I don’t think so. |
|
REFEREE |
OK. Ms. Soule, would
you like to question your witness? |
|
SOULE |
Yes. Joan do you
recall my mentioning to you Mr. Osgood’s threats to fire me? |
| ABROMSON |
Well, I recall you
saying something like that. You said he was on your case. I don’t
remember exactly what words you used, but I think I recall you saying that
Mr. Osgood was upset with you. |
|
SOULE |
Thank you. No other
questions. |
|
REFEREE |
Mr. Jordan, do you
have any questions for Ms. Abromson? |
| JORDAN |
Yes. Ms. Abromson,
isn’t it true that Ms. Soule never complained to you about back pain after
that incident? |
| ABROMSON |
Well I guess so. But
why would she complain to me? I’m not her supervisor. |
|
REFEREE |
(To Osgood) Do you
swear that the testimony you are about to give is true to the best of your
knowledge and belief? |
| OSGOOD |
I do. |
|
REFEREE |
(To Jordan) Mr.
Jordan, I’ll be asking some initial questions and then you may ask your
questions. |
| JORDAN |
OK. |
|
REFEREE |
Mr. Osgood, would you
begin by telling me exactly how often Ms. Soule was absent? |
| OSGOOD |
Well, if you look at
her employee file (employer’s exhibit #1) you can see that Ms. Soule
missed work every one to two weeks. She’d only been with us for three
months and in her position we needed someone that was at work regularly.
When it became clear that she was suffering from back pain, we offered her
other work which wouldn’t stress her back, but she declined. |
|
REFEREE |
Is there anything
else? |
| OSGOOD |
Well yes, she claims
that I hassled her, and that’s not true. I simply told her ... on two
different occasions ... that we needed her at work ... and ... as you can
see ... both those conversations are noted in her employment file. And
that’s all there is to it. |
|
REFEREE |
OK. Thank you, Mr.
Osgood. Mr. Jordan, do you have any additional questions? |
| JORDAN |
Yes. Mr. Osgood, when
Ms. Soule quit, were you given any medical evidence to support her claim
that she injured herself at work. |
| OSGOOD |
No. |
| JORDAN |
No further questions. |
|
REFEREE |
OK. Ms. Soule, do you
have any questions for Mr. Osgood? |
| SOULE |
No ... No questions. |
|
REFEREE |
Well thank you. If
neither of you have any additional questions or comments, this hearing is
closed. |
|
REFEREE |
Both Mr. Osgood and
Ms. Soule were very well prepared. Ms. Soule knew the facts and brought a
witness…someone who had actually seen the incident in which she contends
she was injured. Although the employer brought a lawyer and she didn’t,
she presented her case very well. Mr. Osgood knew the facts too, and he
brought Ms. Soule’s employee file as evidence. Each of them did as much
as they could to present the facts that would help their case. |
|
NARRATOR |
You’ve now seen parts
of two different in-person hearings. Some hearings, however, do not take
place in-person but rather…take place over the telephone.
(Telephone Hearing
Split-Screen) |
|
TELEPHONE APPEALS REFEREE |
Mr. Farmer, can you
tell me exactly how you injured your back at the store? |
|
NARRATOR |
In a telephone
hearing, the same procedures apply, except that testimony is taken by
phone. The Appeals Referee conducts the hearing in the same way, using
the question and answer format…and you have the same opportunities to
present your case…and question the other people involved. And one other
important point: If yours will be a telephone hearing, any documents or
other similar types of evidence you’d like to present must be mailed to
the referee and the opposing party before the hearing. Telephone hearings
are the exception, not the rule. The preferred method is the in-person
hearing. Telephone hearings, however are granted for cause such as an
individual who lives out of state or is otherwise unavailable. The
granting or denying of a telephone hearing is at the discretion of the
Appeals Division. The hearing notice will advise you if the hearing is to
be conducted by telephone and will provide you with the information needed
to take part.
(GRAPHICS)
NOW
LET’S REVIEW
Now let’s
review. First of all: Prepare! Think through your case. Ask yourself
what information, documents, and witnesses will help establish the facts
in your favor. And make sure you know the relevant dates of key events.
Choose witnesses who have direct, personal knowledge or experience of
events about the case. If you’re an employer, don’t just bring a
personnel director because they fired the worker. Bring the supervisor or
someone who saw or heard what happened to cause the firing. If you’re a
claimant, don’t bring your spouse because they know you’re telling the
truth, bring a witness to key events…someone who can help support your
case. Remember, a witness who can be questioned will carry more weight
than a written statement.
(GRAPHICS)
FACTS
Stick to the
facts. Emotions usually just cloud the issue and prevent you from
presenting your case best.
(GRAPHICS)
ORGANIZE
Organize the
facts on paper. Make a list of the important dates and the points you’d
like to make to support your case.
(GRAPHICS)
ANTICIPATE
Then make
another list of the points you think the opposing party may make.
Consider what you will say or ask in response.
(GRAPHICS)
QUESTIONS
If
you have any questions or special needs, please refer to the Appeals Guide
that will be mailed to you prior to the hearing. If you are still unsure
of what to do, call us immediately. Our telephone number is on the top of
the hearing notice.
Remember, the
hearings you have seen are merely a depiction of what will actually take
place at your hearing. They are meant to give you a sense of what will
occur, to help you better prepare. In the end, if you pay attention to
these few details, you should be as prepared as you can possibly be on the
day of your hearing. |
