Misconduct MC 140 - Fact Finding Guide

Dishonesty

General Questions for All Dishonest Acts

1. What is the dishonest act which the employer alleges the claimant committed?
2. When and where did this act occur?
3. How did the employer learn of the commission of the act?
4. Did the claimant make a written or verbal confession to the employer or legal authorities?
5. What evidence did the employer present/have to show that the claimant did commit the act?
   1. If there was someone in the employer's administration who had personal knowledge of the allegation, ask to talk with that person.
   2. If there were witnesses, ask to talk to them.
   3. If discharge was based on reports from an auditor or investigator, ask for copies of the reports.
   4. If documents were falsified, asked for copies.
   5. If the dishonest act was illegal and the claimant was arrested, was the claimant tried? If tried, what was the court's verdict?
   6. If arrested and released without trial, why was the claimant released?

   NOTE: A claimant may sometimes be released without trial under circumstances which help to establish proof, as when a claimant makes restitution and the employer refuses to prosecute.

6. What is the claimant's explanation of the alleged dishonest act?
7. Are there discrepancies between explanation given to the employer and the explanation given to the Department?
8. Could someone else have committed the alleged dishonest act?

Additional Specific Questions That Need to be Asked for the Following Situations:

1. Aiding and Abetting
   1. Who was the perpetrator of the act?
   2. Can the act committed by the perpetrator be considered misconduct? If not, the claimant is not guilty of misconduct.
   3. Was the perpetrator of the act also discharged? If not, why not?
   4. If the claimant states he or she unknowingly aided and abetted another:
      1. Is the statement of innocence reasonable?
      2. Did the employer have established, well-known rules which would cast doubt on the claimant's statement that he or she acted innocently?
      3. Did the claimant stand to gain in any way from the act? If so, this would weaken the contention that he or she acted innocently.
2. Cash Misappropriation

   None.

3. Cash Shortage

   NOTE: An employer may use "misappropriation" and "shortage" interchangeably. Interviewers should remember that "cash misappropriation" as used in this section means a wilful taking of the employer's money while "cash shortage" refers to a loss of the employer's money.

   1. Did the cash shortage occur because the claimant violated some employer rule or policy?
   2. What was the employer rule or policy relative to the handling of cash?
   3. Was the employee rule or policy known to the claimant?
      1. Posted on the bulletin board?
      2. Informed shortly after hire?
      3. Contained in written material given to all employees? If a rule is contained in a pamphlet given to all employees and the claimant admits receiving a copy, he or she cannot claim ignorance of the rule on the ground he or she failed to read it.
   4. Had the claimant had prior cash shortages? What were the circumstances?
   5. Had the claimant been warned or reprimanded?
4. Conversion of Property of Employer and Others
   1. Was the property found in the claimant's possession? ("Possession" means in the claimant's locker, desk, home, etc.)
   2. How could the property have come into the possession of the claimant?
   3. If the claimant sold, pawned, gave away, or otherwise disposed of the employer's property, who was the recipient?
   4. Does the employer have an affidavit or other written statement from the recipient? If so, get a copy for the record.
5. Destruction of Employer Records
   1. Why did the claimant destroy the records?
   2. Was the claimant instructed by his or her supervisor to destroy the records?
   3. What harm did the employer suffer because of the claimant's action?
6. Are there discrepancies between explanation given to the employer and the explanation given to the Department?
   1. In what way was the statement contrary to fact?
   2. What reason did the claimant have for believing his or her statement was factual?
   3. What responsibility did the claimant have to ascertain that his or her statement was factual before making it?
   4. Had the claimant previously made any similarly incorrect statement to the employer?
   5. Was the claimant's alleged falsehood subject to interpretation as to its accuracy or was it incorrect by any standard?
   6. What did the claimant stand to benefit from the statement he or she made?
   7. Could the false statement cause:
      1. Financial loss to the employer?
      2. Physical injury to other employees, the public, customers, etc.?
      3. Damage to morale of other employees?
      4. Friction between employees or between the employer and employees?
      5. Jeopardize the employer's maintenance of discipline?
   8. Would the claimant have been discharged for the act that the false statement was meant to conceal?
7. Could someone else have committed the alleged dishonest act?
   1. Was it the claimant's responsibility to maintain the records which were falsified?
   2. Could the alleged falsification have been the result of innocent error?
   3. What did the claimant stand to gain from the falsification of work and work records?

   NOTE: If the falsification was in recording time worked or number of units produced, and the claimant alleges error, were the errors consistently in favor of the claimant.

8. Falsification of Work Application
   1. Is it reasonable and legal for the employer to require applicants to furnish the information falsified by the claimant?
   2. Why did the employer think that the information provided by the claimant was false?
   3. Did the claimant know that the statement he or she made was false?
   4. If the claimant states the falsification resulted from an innocent error, was it reasonable?
   5. Was the information falsified material to selection for the job?