Termination versus resignation

HRCathy

I have an employee who is on his way out. He is not a good employee and unfortunately, his supervisor (who is now gone) did not see his performance as lacking. The new supervisor is not happy with this employee's performance. If management chooses to let this employee go, what are the benefits of allowing him to quit as opposed to firing him? The supervisor has assured me that he has enough documentation of his poor performance to warrant his dismissal. I have not seen it yet. Thanks for your help.

Rockie

The employee would, more than likely, be able to collect unemployment on a "resignation in lieu of termination". If you have documentation to terminate with cause and you WANT to avoid paying unemployment, I would terminate for cause (with proper documentation). Otherwise, if you are looking to let the employee save face, I'd give him the option to voluntarily resign.

HRCathy

Thanks very much.

HR in Okla

Unemployment is one issue and it depends on your state laws. In Oklahoma, the only reasons for denial of Unemployment benefits is voluntary resignation or "misconduct." Just poor performance isn't enough, you have to prove violation of policy or a serious infraction of the rules.

Also, if it's a choice between quit or being fired, it's not "voluntary" resignation and they usually will get the unemployment. However, it's a psyche thing for some employees. They feel better if they think they resigned, I've had lots of them ask for letters of reference on their way out. I don't do that, but I tell them "when someone calls for a reference, we normally just verify dates of employment." That's enough to satisfy them.

moneyman

What if it is truly voluntary? FOr instance, an employee tenders a resignation for 2 weeks down the road (fairly standard), however, the employer says, "thanks we accept, however, we would like you to go home after today and not show up anymore. Please do not come back, but we will keep you on the payroll and pay you up until the date that you said would be your last day worked."

What is this? a paid leave of absence? does it really matter to anyone that the employee is no longer showing up for work, but still being paid? I have seen this done for security measures. This does not allow the employee to sabatoge the company. By the end of the day, all access and passwords are disabled and the employee takes their personal belongings as they go. Can this be construed as "letting go" or "fired"?

HR in Okla

Not in my book. We often do not require the resigned employee to complete the notice period. In fact, we don't necessarily pay them for the two weeks. Once they resign, in writing, you are not obligated to keep them. For unemployment, it is voluntary.

Make sure you get a written resignation. I have a form that they can sign which also has a release section allowing us to give references, a section to request their "permanent" address etc.

HRCathy

Can you send me that form? I'm not sure how this is going to play out right now. The ee knows that we are advertising and said that he will go when we find someone else. He told this to his supervisor this morning. He knows that he has been screwing up constantly. But, right now, I'm not sure what is going on in his head. He was never told we were looking to replace anybody. So, I will just wait and see what happens. The ee has complained that he doesn't like it here. Myt e-mail is [email]csherwin@castproducts.com[/email]. Thanks everyone for all of your help!!

System

Would you mind emailing me a copy of your form also? Thank you in advance.

Please email to [email]cwinebarger@charter.net[/email]

Don D

It shouldn't 'matter' to anyone, especially govt agencies, that you cut somebody loose when they give notice. In most states, however, if you cut them loose and do not pay the notice period out, they will draw unemployment, even though they initiated the separation. It's common to cut them loose and has no negative, only positive, impact on the employer. I don't know the wisdom of 'keeping them on the books' for two more weeks. I would prefer to sever them from the books and pay out the notice and be done with it. Clean and simple...and over.

HR in Okla

I don't remember ever having someone file for Unemployment under those circumstances, so don't know what Okla. does. Most have another job waiting and accrued vacation pay coming, and are relieved to just get to leave.

HRCathy

If this ee decides to quit, I will gladly accept his termination and ask him to leave. Two weeks notice only makes me pay him for two more weeks of his drinking coffee. I definitely like clean, simple and over. I am afraid he will wait until we fire him thinking that somehow it will benefit him in some way. If he knows about the advertisement, he has been looking already. I can only hope he finds something on his own, I fear that his manager doesn't have enough documentation to fire him. I didn't even know he was a problem until now. So, now I am scrambling around looking for documentation which may not be there. The fun never ends.

Don D

>If this ee decides to quit, I will gladly accept his termination and
>ask him to leave. Two weeks notice only makes me pay him for two more
>weeks of his drinking coffee.

Am I reading you to say that you would cut him loose and NOT pay him for two weeks notice that he gave? That is precisely the point I make. In this state, and several others, if that happens, the individual can and will qualify for unemployment if even just one week after the waiting period of one week. Then if their other job does not materialize, they are able to draw the regular period of unemployment and it's chargeable to the account of the employer that cut him loose rather than paying the two weeks.

HRCathy

So my best bet is to accept his resignation and pay him out two weeks notice, whether I keep him at the office or not. I was thinking about this and realized in the three years I have been in HR, this subject has not come up. The only people that have left the company have done so through lay-off or termination.

SDDCHR

Another thing to consider is payouts of balance's upon termination versus resignation. Such as accumulated sick leave. Also, maybe he's looking to be terminated because he feels that he may have a wrongful termination suit that he can pursue?

HRCathy

He may think he has a case. As of now, the only thing I really have on him is that he is a lousy designer. He has cost us money because of carelessness and poor designs. He has taken 200 hours to do a mold that should have taken 60. I am sure he looked into UC and that is why he is not going to quit. I will tread carefully on this one. I will talk to the attorneys too before we take any action. I know he is looking because he came to my office asking questions about benefits. I can only pray that he finds another job and just leaves. But, I am sure it won't be that easy.

Crout

While anyone can file a lawsuit for any reason, In this situation I don't think you have to worry about "wrongful termination" unless he has somehow been the victim of discrimination. However, if you let him go because he is a lousy designer it's almost certain that he will be able to collect UC benefits, especially if the documentation is not adequate.

HRCathy

Thanks everyone. There is no discrimination here. He is just not doing the job he should be doing. The managers want to let him go today just to protect the company from any sabotage. I have enough documentation to prove he is lousy, I don't have enough to prove that he was warned about it. We won't fight UC benefits. They just want him out. If he files a claim, I have the list of the mistakes and what it cost us to fix them. Wish me luck.

psrcello

Frankly, unemployment benefits would be the last thing I would debate about with this employee - sometimes it's just good business sense to get rid of an employee, and unemployment charges are a small price to pay. I wouldn't prolong the agony.

We generally give our employees the option to resign in lieu of dismissal (unless there's been gross misconduct). They'll get unemployment in Nebraska after seven weeks waiting period either way. However, if they resign, we would "consider" them eligible for rehire after six months. On the flip side, if they choose dismissal, they retain their right to grieve the termination under the union contract.

dodaniel

Would you please send me a copy of your form? Thank you!

[email]dodaniel@nw14.esrd.net[/email]

ray a

We had a supervisor who we believed was guilty of gross misconduct. We terminated his employment the next day. In asked to resign instead which I gladly and quickly accepted. When he applied for UI, he was approved only because it was his first documented offense. We didn't care about the UI, we were just glad he was gone. UI was a small price to pay.

Don D

It's needs to be said that it is not a 'dismissal' or 'firing' or 'termination' when the employer decides to cut somebody loose and pays him when he has resigned, with notice. Even though any separation technically is a 'paper termination' it isn't a termination initiated by the employer. My conversation would be along the lines of, "You have quit/resigned and gave two weeks notice. The company has decided to go ahead and cut you loose today with pay for those two weeks. Your check will be ready on _____. John will assist you in gathering your things."

HR in Okla

I agree, it is still technically a voluntary resignation. You just aren't requiring that he complete the notice period.