07/17/2023
Tips from TWC for employers:
Prevailing in Job Performance Claims
While unemployment claims about job performance can potentially be challenging, it is still possible for the employer to prevail. For example, establishing that the claimant’s work was not complex, and that the claimant failed to pay reasonable attention to tasks could establish misconduct connected with the work. (See Appeal No. 96-003785-10-031997:https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf =356). Furthermore, if the employer can establish that there was an unexplained drop-off in the claimant’s work performance, when the claimant had previously performed the work adequately, misconduct connected with the work could be found. (See: Appeal No. 1781-CA-77:https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf =354). Moreover, a claimant’s negligent performance of the work has also been found to be misconduct connected with the work. (See precedents under “MC 300.40 Manner of Performing Work: Careless or Negligent Work.” here:https://twc.texas.gov/files/twc/appeals-policy-precedent-manual.pdf =356).
Conclusion
In an unemployment claim about job performance, a claimant could contend that they could not meet the employer’s expectations despite working to the best of their ability. If that occurs, the employer has a better chance at prevailing on the claim if it can establish that the final incident of poor job performance was close to the time of discharge, was within the claimant’s power to control, and that the claimant knew or should have known that failure to improve would result in discharge.
