I own and run a very small business. I hired an assistant as a salaried office worker to do typing, filing, basic bookeeping, phones etc. He was a disaster: he made constant mistakes with numbers and typing. He couldn't do simple office tasks such as filing or putting a few hunded checks in order. He was completely disorganized and lost papers and misfiled documents. I gave him several written notices and several verbal warnings. I finally fired him after five and a half months of him driving me crazy. He filed a claim for unemployemt benefits. I am trying to fight his claim. I need some advice about what to write to the New York State Dept of Labor about the reasons I fired him. Can he still collect Unemployment Insurance if he was fired for incompetence and making constant mistakes?

Probably. Poor performance is generally not a disqualifier for unemployment benefits.

You're on perfectly firm ground for the termination. A lot of people think that getting unemployment means that the employer was somehow "wrong" to fire the employee. It is perfectly acceptable and 100% legal to fire someone for poor performance. But it's not likely to disqualify them for unemployment unless you can show, by VERY convincing evidence, that they were deliberately under-performing and could have performed to standard if they chose to.

Thank you for the information

he made constant mistakes with numbers and typing. He couldn't do simple office tasks such as filing or putting a few hunded checks in order. He was completely disorganized and lost papers and misfiled documents.

When did I work for you?

Seriously, this is a performance issue and not misconduct. His inability to do the job won't likely disqualify him from getting unemployment. Should you fire him? Absolutely! His unemployment costs likely pale to the costs of the problems he created, but they were not deliberate.

With his replacement, ride herd on him/her for the first four weeks to be sure that they can and will do the job as expected. If the person cannot, find another one. Document this person's ability to do the job (a simple "attagirl!" will suffice). Then, if the person slacks off, it is not really a performance issue, since it had been demonstrated that the person could do the job. Being unwilling to do the job is misconduct in my book (although the UI folks will make the call on that).

One issue you need to explore is whether this was a "cant " or "wont"

If he cant do the jobbecause he just lacks the skills, he'll probably get UI.
If he is not doing the job because he is goofing off, on the internet all day or something similar, then it could be a rules violation rather than performance. The, UI would depend on whether the person knew about the violation, was warned, and continued the violation.

Pure inability to perform is generally decided in the employee's favor. It is considered the employers responisbility for not carefully checking that the new employee had the skills and/or training to do the job.

Document this person's ability to do the job (a simple "attagirl!" will suffice).

Do not do this if the employee is male. Do not do this unless the female employee is under 12. :p ScottB, you know I like you lots But, seriously, even "assistants" should be treated with respect and most women I know don't care to hear "atta girl". :(

Do not do this if the employee is male. Do not do this unless the female employee is under 12. :p ScottB, you know I like you lots But, seriously, even "assistants" should be treated with respect and most women I know don't care to hear "atta girl". :(

Oh, for Heaven's Sakes!

I could have said "attaboy!" and gotten blistered for that, too!

Attaboys are verbal recognition of a job well done. One thousand attaboys are wiped out by one Awwsh**.

Enough already.

Thanks to you all for the information and advice. :D There are two more things I didn't mention in my initial post: The employee omitted an important material fact from his written employment application. He was employed as a night watchman at a department store. He was working there when he applied but didn't list it on his application or on his resume. He told me about this after I hired him. He continued to work at this job at reduced hours on weekends while he worked for me.
Is this ommission grounds for termination?
If he still works at the other job can he collect Unemployment Benefits? :confused:

Yes, falsifying his application can be grounds for termination. But so can poor performance. You are on perfectly strong grounds for terming him.

But whether or not the second job will bar him from collecting unemployment is not something we can determine with the information available to us. I doubt that leaving an employer off his resume/application will be considered sufficient misconduct to bar him from unemployment, but it is *possible* that his earnings at the other job may be enough to make him ineligible. I wouldn't count on it though.

I think you need to accept the fact that you may not win this battle; in fact, I suspect the odds are that you will not. Unemployment is geared in favor of the employee. In baseball, in case of a tie it goes to the runner; in unemployment, in case of a tie it goes to the employee. His receiving unemployment does not mean that you were "wrong" to fire him or that he will have some kind of wrongful termination suit against you, but the plain fact is that nothing you have posted is a clear disqualifier for benefits. Your grounds for termination are legal, valid and justified, but I wouldn't be doing you any favors by assuring you that you're going to prevail in your action to contest his benefits when I honestly don't think you will.

Of course I could be wrong. There could be something you're not telling us because you don't think it matters; there could be details in any documentation that turn the tide in the other direction; the ALJ could be in a bad mood and rule in your favor because he happens to feel like it. I've seen outrageous decisions on both sides of the issue; I've seen unemployment granted when the misconduct was clear and I've seen unemployment denied over poor attendance, when I didn't even contest. But while everything in your post suggests that termination was both legal and justified, nothing in it convinces me that the employee will not be able to collect.

Thank you for your insight

The employee omitted an important material fact from his written employment application...Is this ommission grounds for termination?

It could be, but I think you are grasping at straws, looking for a reason to deny him unemployment. Your case for terming him for the omission will be weak if you did not term him immediately or soon after learning about the other job that was not listed.

If he still works at the other job can he collect Unemployment Benefits? :confused:

Not my call nor yours. Totally up to the UI folks.