What evidence can be admitted at a Referee Hearing?
The main reason an Employee appeals their Notice of Determination is because he/she disagrees with their eligibility status and wants to introduce further evidence to prove why he/she should be eligible for benefits. In preparation for an unemployment compensation (UC) Referee Hearing, it is important to know what evidence can be admitted to prove why you should be eligible for benefits.
The most common type of evidence submitted is testimonial evidence. Testimonial evidence is when you provide testimony, from either yourself or a witness, concerning the events that led to your separation from your Employer. Anyone can be a witness (a fellow co-worker, Supervisor, Doctor, etc.) at your Referee Hearing as long as they have knowledge of the events that resulted in your separation. The best witness is someone who has first-hand knowledge and can provide first-hand testimony about the event that resulted in your separation. For example, if you were terminated for an incident, you would want to bring a witness that was actually present for the incident that could testify to what he/she saw.
The other type of evidence you can submit is physical evidence such as documents, photographs, video, records, etc. For example, if you were accused of stealing something, video surveillance from Security may prove you didn’t steal anything.
If you choose to submit documents (i.e., photographs, records, etc.) you should always make several copies in case an attorney for the Employer shows up. In that case, you will have a copy to refer to, the Referee will have a copy and the Employer will get a copy as well. It makes the process much easier.
It is important to remember that the Employer also has the opportunity to submit evidence to prove why you shouldn’t be eligible for benefits. The most important thing you have to worry about when an Employer submits evidence is hearsay.
Hearsay is commonly used in the legal system and most people are unaware of what it is. Hearsay is an out-of-court statement. In other words, it is a statement (either verbal or written) that was made by a person who is not physically present at the Referee Hearing. If an Employer tries to admit a statement (either verbal or written) from a person who is not present you should immediately object to that evidence being submitted. For example, say an Employer tries to admit a Disciplinary Warning that was created by your Supervisor (and your Supervisor isn’t present at the hearing). That Disciplinary Warning is hearsay because it is a written statement from your Supervisor who is not present to testify about it. You should object immediately (on the basis of hearsay) to the Disciplinary Warning being admitted into evidence.
Additionally, if your Employer tries to admit testimony from someone who isn’t present at the Referee Hearing that is also hearsay. For example, if your Supervisor was not present for the incident that resulted in your termination and he/she became aware of it by another Employee, the Supervisor cannot testify to what the Employee told him/her. The Employee is not present at the Referee Hearing to testify to it. Therefore, the Employee’s verbal statement is hearsay. You should object immediately (on the basis of hearsay).
This is the type of evidence that can and cannot be admitted into a Referee Hearing. Each case is different but this Article discusses the most common questions about evidence at Referee Hearings.