WitnessI have done thousands of unemployment hearings, and I always find that the employer is never quite sure how to determine the proper witness.  Some employers believe that any member of Human Resources would be ideal where other employers believe it is just the person who actually conducted the separation meeting.  The truth of the matter is the person who actually “witnessed” the final incident is the BEST witness.

In a discharge case, the burden of proof rests on the employer to prove willful misconduct.  Often it is a coworker or the direct supervisor that witnessed the violation.  They might have informed Human Resources or a member of senior management who then took the necessary action to terminate the employee, but it is the coworker or the direct supervisor who is most needed.

Some employers feel that the coworker or direct supervisor might not have all the information such as dates of employment, pay rate, supporting documentation and that is why Human Resources or a member of senior management needs to be there, which is fine.  However, the actual eyewitness to the violation should still be there so that they can testify to what they actually witnessed.  They are not needed for any other testimony outside of that.

The Administrative Law Judge will want to hear the testimony from Human Resources if they actually did the termination.  They will ask about the employee’s background, such as dates of employment, job title, hours worked per week, if they were full time or part-time.  They will even ask about the termination meeting.  For instance, what did you tell the employee the reason was for the termination and did the employee respond.  They will ask, does the employer maintain a policy in regards to the violation and did the employee know about the policy?  The last question the Administrative Law Judge will ask of the direct supervisor or Human Resources is “did you actually witness the final incident and if not, how was the employer made aware of the incident?”
This is the time where that coworker who actually witnessed the violation will need to testify!  The Administrative Law Judge will say to the coworker, “Tell me what you witnessed,” and this is where the employer will ultimately meet their burden of proof.  The coworker is the biggest part of your case because without this witness the former employee can and will deny the allegations and all you are able to present is “hearsay” testimony which is not given much weight in a hearing since the former employee  is giving “first hand” testimony in regards to the final incident since they were actually present at the time of the final incident.


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