The Final Incident: The Question Every Adjudicator Wants Answered

Why "What finally happened?" can determine the outcome of a claim.

The final incident often answers the question every adjudicator asks: "Why was this employee terminated when they were?" Employers who can’t clearly identify the triggering event often struggle to establish the connection between the employee's conduct and the decision to discharge.

We all know that one employee who is repeatedly late to work, takes long breaks and lunches, misses deadlines, or just doesn’t seem to mesh with the crew.  One day something happens and as an employer you just can’t do it anymore, so you let them go. 

Employers often submit what amounts to a laundry list of reasons—attendance, performance concerns, policy violations, attitude issues, and missed deadlines. Any one of them may have contributed to the decision to discharge. Together, they explain why the employment relationship soured.

The problem is that the list often fails to identify what really triggered the separation.

The Last Straw

Every employer eventually reaches a point where they decide the employment relationship can no longer continue. Employers often describe that moment as "the last straw."

For unemployment purposes, however, identifying that final thing—the last straw—is important because unemployment laws and rules are applied to the event that led to the separation, not simply the reason for it, whether it was a voluntary quit or a discharge.

If the employer provides their reason but never clearly identifies the final incident, the adjudicator must determine from the available evidence gathered during the fact-finding process what straw broke the camel's back and prompted the separation. That may or may not be the same event the employer viewed as the last straw.

“When the employer’s explanation didn’t clearly identify the final incident, I often found myself asking: "What was the straw that broke the camel's back? What happened that made you finally decide, 'I'm done. I can't do this anymore.'”

What’s the Story?

The following examples are fictional and created for educational purposes. While they reflect situations that commonly arise in unemployment claims, the names, businesses, and events are entirely fictitious. Any resemblance to actual individuals, businesses, or events is purely coincidental.

Scenario 1: Violet

Violet attends new hire orientation where she reviews and signs the employer's attendance policy. During her first month of training, she is late to work on three separate occasions. Each time, her trainer counsels her about the importance of arriving on time. Violet is polite, accepts the feedback, and explains she plans to leave earlier to avoid traffic.

After successfully completing training, Violet is late twice during her first week in her new position. Her supervisor issues a written warning advising that future attendance problems may result in additional disciplinary action, up to and including termination. Again, Violet acknowledges the warning and explains that road construction has been causing delays.

The following week, Violet is late again and receives a final written warning. Over the next two months, her attendance improves and she arrives to work on time every day. Then one morning, she is late again. The employer terminates her employment.

Scenario 2: Jake

Jake has a reputation for being a hothead and is currently on probation for a prior workplace incident which led to incarceration. One afternoon, he and another employee, Ray, are eating lunch in the break room. Frustrated with Jake's chronic tardiness, Ray begins making sarcastic comments about him in front of several coworkers. Embarrassed and angry, Jake loses his temper and punches Ray. The two begin fighting until coworkers separate them and management is called.

Police respond to the scene, take statements, and arrest Jake. Because the arrest violates the terms of his probation, he is returned to jail. The employer terminates Jake's employment. Ray receives a written warning for provoking the confrontation.

Scenario 3 -Alan

Alan has a history of chronic unexcused absences, performance issues and tardiness.  He received, signed and acknowledged his employee handbook containing the employer’s policies.  Each issue has been documented. Standing alone, none rises to the level of termination under the employer's policies. 

On Monday Alan was tardy and made numerous mistakes while rushing to get caught up. On Wednesday Alan called out again, reporting that he was having car trouble and had to take it to the mechanic.  His coworkers, Sam and Barbara, were asked to cover his work and discovered numerous mistakes.

They went to their supervisor, Mike, voicing concern that Alan’s unplanned absences and poor workmanship were making their workload harder and provided examples of Alan's work needing correction.  When Alan returns on Thursday, he is late again, so Mike calls him in to the office to address the absences and the mistakes.  Alan receives final written warnings for performance, attendance and tardiness. 

Mike instructs Alan to make all corrections prior to starting any new work with a deadline to complete the corrections by the end of the day.  Alan signs the warnings, steams out of the office and takes the work needing correction back to his workstation.  He’s grumpy and rude to Sam, Barbara and his other coworkers the rest of the day.

 That afternoon, Mike checks in with Alan and finds him still in the break room on his phone.  Mike instructs Alan to return to his workstation immediately because his break ended nine minutes earlier and asks to see his progress on the corrections.  Alan refuses to go back and says he is not going to make the corrections.   Mike terminates Alan.

So, What Was the Final Incident?

Scenario 1 - Violet

Violet’s story is an adjudicator’s dream.  A slam dunk case from start to finish with a clear-cut final incident.

The earlier attendance violations explain why the employer reached the decision to discharge Violet. They establish the history, the coaching, and the progressive discipline. But the final incident is the last occurrence of tardiness that resulted in the employer carrying out the termination.

Scenario 2 – Jake

Jake’s story is a bit tricky because there are several things occurring simultaneously that resulted in termination and none of them are related to any prior work issues or warnings.

Was Jake discharged because he assaulted a coworker? Because he violated a workplace policy? Because he was arrested? Or because he was incarcerated and unable to report to work?

Scenario 3 - Alan

Alan's story illustrates what many real unemployment claims look like. They're messy. There isn't one obvious issue. Instead, several different workplace problems converge before the employment relationship finally ends.

Was Alan discharged because of his chronic unexcused absences? His poor performance? His repeated tardiness? The coworker complaints? His rude attitude toward his coworkers? The final written warnings? Staying nine minutes past his break? Or was it because he refused his supervisor's instructions to return to work and complete the assigned corrections?

Back to the Last Straw

The reasons for the discharge and the final incident may be related, but they aren't always described the same way. The reasons for the discharge help explain why the employer reached the decision to terminate. Employers often describe their reasons by combining every issue that contributed to the decision, believing the cumulative history strengthens their case.

The final incident explains what ultimately led to the separation. Before determining which law or administrative rule applies, the adjudicator must first determine which event became the final straw that triggered it.

As two of the scenarios demonstrated, the answer isn't always the event that first comes to mind. In the last two scenarios, several different events could potentially be the final incident. When the answer isn't immediately obvious, the adjudicator asks additional questions until the event that triggered the separation becomes clear.

Jake and Alan's cases are both complicated or, in adjudicator terms, are messy claims. But real unemployment claims are often messy. They rarely arrive neatly packaged. They arrive looking much more like Jake and Alan than Violet. Finding the final incident answers a single question, but it doesn't wrap up the case. Identifying it determines where the fact analysis begins.

Every unemployment claim comes with its own facts, challenges, and circumstances. If this article made you realize there's more to an unemployment claim than you first thought, imagine what you could learn by seeing your claim through the eyes of a former unemployment adjudicator.