Preparing for the Hearing
During a hearing, the appeals hearing officer will take testimony and other evidence, such as documents, from the parties and their witnesses. Hearings are structured but not as formal as court proceedings. The hearing officer will assist both parties by explaining the procedures and helping them present their cases. The hearing officer will make his or her decision based solely on the evidence and testimony presented during the hearing. During a hearing, each party has the following rights:
- To testify on his or her own behalf.
- To have relevant witnesses testify.
- To present relevant documents as evidence.
- To question opposing parties and witnesses.
- To examine all relevant documents submitted as evidence.
- To be represented by an attorney or other representation.
The Appeals Tribunal
After a request for an appeal is received, the Appeals Tribunal schedules a hearing and mails the claimant and employer a Notice of Hearing. The notice sets forth the time, date, and location of the hearing, issue(s) that will be addressed and whether the hearing officer will conduct the hearing by telephone or in-person. Read the Notice of Hearings carefully, as it will detail how your hearing will be conducted and will provide instructions.
If you have a significant conflict that cannot be rearranged or rescheduled without substantial inconvenience, such as a job interview, legal proceeding, illness or death in the family, you may request the hearing to be rescheduled for another date. The request must be in writing and may be mailed or faxed to the Appeals Tribunal. Please be specific as to why you cannot appear for the hearing. Absent an emergency, a party that requests a rescheduling must make his or her request at least 48 hours prior to the hearing.
If you have documents to offer as evidence for the hearing, you must send a complete copy to the opposing party and to Appeals Tribunal at least 48 hours prior to the scheduled start of the hearing. Prior submission of documents to the Agency during the initial claims process does not satisfy this requirement. The pages of any documents submitted must be numbered. Failing to submit copies to the other party, could result in them not being considered by the hearing officer when making a decision.
Requests for subpoenas should be made at the time the appeal is filed or as soon as possible thereafter. If you wish to subpoena a witness or a document, you must send a fax or written statement to the Appeals Tribunal no less than seven (7) days prior to the hearing's scheduled time by fax at (615) 741-8933 or by email (AT.Changes@TN.gov). You must state why the witness or document is important to your case, along with the name and complete address of the witness or person holding the document.
Most appeal hearings are scheduled by telephone for the convenience of all parties. However, a hearing may be scheduled in-person at the request of either party. In order to request an in-person hearing, you must contact the Appeals Tribunal at least 48 hours prior to the start of the scheduled hearing. If you request to appear in-person, expect additional delays in scheduling the hearing. Also note that your request to appear in-person does not necessarily compel the opposing party to appear in-person as well. The proceedings are recorded and testimony is taken under oath or affirmation. Be prepared to testify about the issue(s) stated on the Notice of Hearing. You will be allowed to question or “cross-examine” the opposing party's testimony and the hearing officer will ask questions.
You may bring one or more witnesses; however, your witness should be an “eyewitness” and thus have actual, direct, personal knowledge of the facts. Testimony from a witness with only second-hand knowledge will carry little to no weight with the hearing officer.
You will be expected to appear at the address of the Appeals Tribunal hearing location indicated on your Notice of Hearing. Bring the notice of hearing with you and arrive before the hearing's scheduled time. If you are not present on time, the hearing officer will wait fifteen minutes before either starting the hearing without you or closing the hearing. Failing to participate in a hearing may result in an adverse decision.
Hearings by Phone
Parties are able to participate in the hearing via conference call. At the scheduled hearing time, you must call into the phone conference at the number and access code listed on your notice. Have your telephone line free and any witnesses or documents you require for the hearing with you at that time. Please be in a location where you may minimize any background noise or distractions. Due to inconsistent service quality, the use of mobile devices are discouraged. With a phone hearing, your hearing officer may be located in another part of the state, so please be mindful of whether your hearing is scheduled for Central or Eastern Time. If you do not call into the hearing within fifteen minutes of the hearing's scheduled start time, access to the conference call will be closed and you will have to request the hearing to be reopened at the discretion of the Appeals Tribunal.
Incorrect Phone Number
Please keep your contact information on file with the Department of Labor current. If your telephone number is incorrectly listed on the Notice of Hearing, contact the Appeals Tribunal immediately by fax at (615) 741-8933 or by email (AT.Changes@TN.gov), but in no event later than 24 hours prior to the scheduled time. In lieu of an emergency, a change of telephone number may be received up to one hour before the scheduled time shown on the notice; however, there is no guarantee that late-filed contact information will be received by the hearing officer prior to the appointment.
Witnesses by Phone
Plan to conference the witnesses into the telephone call on your own. If you are unable to do so, you must submit complete contact information for any witnesses (name, address, telephone number) to the Appeals Tribunal no later than 48 hours prior to the scheduled start time of the hearing. It is your responsibility to have your witnesses ready for the hearing.
Rights of Both Parties
1. To testify on its own behalf;
All testimony is taken under oath and recorded.
2. To have relevant witnesses testify;
Witnesses should have firsthand knowledge of the issues involved.
If a witness will not attend a hearing voluntarily, the individual can be subpoenaed.
3. To present a relevant document as evidence;
Bring the original to the hearing. Copies must be provided to the Appeals Tribunal and the opposing party at least 48 hours prior to the hearing. If a subpoena is needed to secure documentary evidence, the written request must specifically describe the document(s), why it is important, and where it is located.
4. To question opposing parties and witnesses;
5. To examine all relevant documents that are submitted as evidence;
6. To be represented by an attorney or other representation
Interested parties may be represented by an attorney, if they wish. Attorney fees are the responsibility of the party represented. If you cannot afford an attorney, free or low-cost legal assistance may be available through your local Bar Association or Legal Services Organization. Attorneys who hold a license outside of the state of Tennessee must abide by Supreme Court Rule 19 prior to the scheduled hearing. They must also enter a notice of appearance.
Presenting Evidence During an Appeal
The Appeals Tribunal is the second level of decision making on an unemployment insurance claim. If a party does not agree with the agency’s initial determination, that party can file an appeal, and the Appeals Tribunal will conduct a hearing. At that hearing, each party will be given the opportunity to testify under oath and present other evidence, such as relevant documents, and to ask questions of the other party, commonly called “cross-examination.”
From the evidence presented, the appeals hearing officer will make “findings of fact.” These findings represent what the hearing officer believes happened based on the “competent” evidence that the parties have provided. Competent evidence has weight: think of Lady Justice holding the scales and weighing the evidence.
The testimony of an eyewitness to the event for which a claimant was discharged is competent evidence. The testimony of someone who was not an eyewitness, someone without personal knowledge, is “hearsay,” and hearsay weighs nothing. Obviously, the party who produces the most competent evidence will “tip the scales” in its favor and win the case.
From time to time, a party won’t bring the right witness to a hearing and will lose a case that it should have won. Here’s a typical example:
The supervisor sees an employee doing something that the supervisor believes is a serious violation of the employer’s rules. The supervisor tells the human resource manager who, in turn, discharges the employee. The employee files a claim for unemployment benefits and thus becomes a “claimant.” The agency denies the claim based upon the supervisor’s written statement of events, which seems more persuasive to the adjudicator than the claimant’s statement. Exercising his right to a hearing, the claimant files an appeal.
At the appeals hearing, the human resource manager appears and testifies. Because he has no personal knowledge, his testimony is hearsay. The supervisor – the individual with personal knowledge and the employer’s eye witness – does not appear. He was available, but the human resource manager didn’t think to bring him, assuming the supervisor’s written statement would be enough. Unfortunately, the written statement is also hearsay. Why? Without getting technical, it’s just a piece of paper that cannot be sworn in, questioned, or cross-examined. (Yes, there are situations where a piece of paper can have weight, but this isn’t one of them.)
The claimant then testifies and disputes the human resource manager’s testimony, as well as the supervisor’s statement. To the hearing officer, the claimant seems to be a credible witness and according to his testimony, he didn’t do anything that would be considered misconduct.
So, who wins this case?
The claimant wins. The employer did not produce any competent evidence while the claimant’s firsthand testimony had weight, tipping the scales in the claimant’s favor. The result might have been different if the human resource manager had brought the supervisor to testify, but he didn’t and consequently, the employer had little, if any, chance of winning.
Reaching a Decision
A copy of the Appeals Tribunal’s decision will be mailed to both parties. If you disagree with the Appeals Tribunal’s decision, you have the right to appeal that decision in writing to the Office of Administrative Review.