18. Was the Claimant Incapable of Following the Rule?

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. See G.L. c. 151A, § 25 (e); Trustees of Deerfield Academy, v. Dir. of the Div. of Emp't Sec., 382 Mass. 26, 33(1980) (findings of fact that employee was “an unsatisfactory employee” were sufficient for a conclusion that the claimant was not fired for disqualifying misconduct). (Quotations in original).

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 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 by the claimant, 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. AH c. 8, § 1B.3.