A statutory exception to a finding of disqualification under G.L. c. 151A, § 25(e)(2) is that “the violation is not shown to be as a result of the employee’s incompetence” a proviso that modifies both prongs (deliberate violation and rule violation) of the discharge provisions. SRH  § 1310(D).

DUA's UI Request for Information sent to employers at the initiation of a UI claim includes as a non-disqualifying reason for separation: "Released due to inability to meet performance standards. No misconduct or violation of company rule or policy." DUA's handbook describes "incompetence" as a "defense" to disqualification. SRH § 1310(D). To the extent that this places the burden of proof on the claimant, it may be inconsistent with the statutory scheme. To establish incompetence, a claimant can show that he or she was incapable of adhering to the rule due to a lack of ability. If the claimant's work is not satisfactory to the employer but there is no deliberate lack of effort on the claimant's part, incompetence is similarly established.

In some circumstances, a claimant's incompetence may be due to a temporary factor (such as stress attributable to a divorce or a family illness causing loss of concentration), even though the claimant has the inherent ability to perform the job. SRH § 1310(D).