Resignation or Terminated?

JCInfo · October 2004

I have a manager who was becoming increasingly difficult to work with, flaring temper, thought every other manager was incompetent, demeaning to employees and questionable performance.
Since I was updating and revising the job performance and job descriptions, the Pres and I met with this manager to discuss his tasks and performance. The purpose was to find out where the manager was at and to find out what the issues were so we could work with him. (The behavior change had come about over the last 10-12 months and was getting worse). The manager became defensive and we tried to reassure him we were only trying to find out what the issues were so we could resolve them.
Unfortunately, we were not able to finish the interview before a 6pm appt the Pres had, so we agreed to meet the following morning to finish up.
The Pres got 1 sentence out the next morning and the manager stated he didn't need to "put up with this crap" and we should put an ad in the paper and replace him. We continued trying to talk with him, but really didn't get anywhere, except to agree that while he was on vacation the following week, we would all think about it. Twice more during that week, he stated to me (no other witness) that he was very serious and he wanted me to run the ad. I reported this to the Pres.
While he was gone, I was covering for him and had occasion to go into his office to look for some paperwork. I took another manager in with me as a precaution. While we did not locate the paperwork, we did find numerous issues (about 20+) that had not been resolved, going back to Sept 2003. All are extremely time sensitive items and require immediate attention and turnaround and involved high $. Needless to say, we determined to go ahead and accept his resignation when he returned.
We met with him Monday afternoon and told him that we were going to accept his resignation and discussed his working through the week to transition and resolve any outstanding issues on his desk. We then talked to him about what we found while he gone and asked him to help us work through them. He agreed. However, during the week, he was sullen, uncooperative and downright nasty. On Wednesday, he indicated he had everything cleared up and would just as soon be "on his boat fishing". Then, later that afternoon, he sent me an email accusing me of sleeping with the Pres. After that, we decided it would be best to have him leave.
Now my question. He is filing for unemployment stating he was fired. At no time did we discuss firing him in all the discussions we had. How should I proceed with this? I am concerned as he seems to be very unstable at this time.
Thanks . . . sorry for the long post.

juju · October 2004

Do you have anything in writing from him? You can show the date he stated he was leaving to counter his claim of being fired. When someone makes comments like that to us, we always ask for a written resignation. It definitely makes it easier from an unemployment point of view.

JCInfo · October 2004

I wanted to get something in writing, but the Pres felt we absolutely wouldn't get anything.
I do however, have a very disjointed paper the manager wrote regarding how he wanted the employees to be notified of his leaving. He starts out with stating he has decided to go on to something else, but then ends it with something about the company re-organizing and since we no longer need that position . . ." This is entirely not true, but that's the only thing in writing I have.

Don D · October 2004

Here are your options:

1) If you and the president think the unemployment insurance being awarded will significantly impact your experience rating, thus your UI taxes, then you will have to contest it and appear at a hearing. Both you and this hothead will be in a small room with the hearing officer and the contest will be nothing more than he said she said. This setting should be a large determinant in whether or not you think it is worthwhile to contest and appeal. Sometimes it is best to let the UI slide and get the hothead out of the picture instead of continuing to be engaged in battles with him. Based on my experience with UI, this would be a tough one to win with the questionable 'resignation' and the fact that there was no progressive discipline. Real iffy. I personally would not contest it.

2) If you and the boss' analysis is that his drawing UI will be insignificant in the scheme of things, ignore the mail and call from the UI office and he will draw the claim.

Craig D · October 2004

I agree with Don, the cost of UI would not be worht the fight, and it may eliminate any further action.

pork1 · October 2004

JCINFO: I agree with the others, with the exception that I would pursue a verbal resignation followed with his trumped up letter of departure as supporting documentation for the bases of termination. I would pursue this line of actions to the 1st phase of the UI process with the written response to the claim, followed by telephone interviews with the 1st phase counselors. Then if the ee claim is affirmed, I would not fight it, if he losses and it goes to a on-site hearing I would not contest the claim. However, if it was a telephone hearing I would make our leadership team available for discussions and questioning by the hearing officer. If his claim is affirmed, then so be it don,t waste any more time on this action. I have won claim denials in telephone hearings just because the "arrogant nature of the individual" is allowed to be heard by the hearing officer and his verbal indications to the CEO and you, and the "letter of depature", which can be faxed to the hearing officer maybe just the right medicine to win the case. Your and the CEO's time would in this case be well spent.

We wish you well in your efforts!

PORK

dchr9203 · October 2004

The best you can do is document the events, including his statements to replace him and the meeting where you told him you would accept his resignation, then submit it when/if he files for unemployment.

Whatever · October 2004

Let me throw out a different tack, though I doubt it will work. Point out that he was uncooperative. Point out that he wasn't doing his job (the unfinished paperwork). Point out that he had been creating a hostile work environment. Then state that if he hadn't resigned, he would have been terminated for cause.

Crout · October 2004

"After that, we decided it would be best to have him leave."

Sounds like you fired him to me. If you asked him to leave it voids any resignation he may have submitted. I don't think you should contest UI, but if you do I agree with the advice to document the crazy series of events as best you can.

E Wart · October 2004

I would briefly (which is hard for me) document the file of the meetings and discussions. (That you were meeting with him on drawing up his job description and that during the meeting he tendered his resignation. The president told him to take his vacation and think about it. When he returned, you accepted his resignation. He worked part of his notice and then was not necessary for him to be there for the rest. I would fight it. Seems that you "got rid" of someone you needed to, ended up being easier than you thought, but he resigned. You never once said you were terminating him and didn't... you accepted his resigantion. And, you have a witness and he doesn't. If he is under an oath and they ask him if he resigned, he should have to say yes. You may win and he might have to appeal and drop it.
Good luck.
E Wart

JCInfo · November 2004

Just an update on the above.
The Unemployment office called and talked to me 3 times last Monday to discuss this employee.
The initial interviews were held because of some inappropriate behavior during a managers meeting in which this employee was totally out of control and all managers were witness to it. During the initial interviews, our purpose was to help him understand his job duties and to find out what his understanding of those duties were, to help him identify why he was having employee problems/communication and anger issues and see if we could work it out with him. At the time of the initial 2 interviews, we were really trying to help him out. However, because he was so unco-operative and after finding the unresolved issues on his desk while he was on vacation, we had determined to accept his resignation.

I pointed out to her that at no time did we discuss termination with the employee, but we had accepted his verbal resignation and tried working with him through the transition phase. He had written a rambling statement indicating how he wanted the employees to be notified of why he was leaving and while it did not say "I am resigning . . " it did indicate that he had decided to try other things.
I also told her that he had not been co-operative during this time and had indicated by Wednesday that he had nothing left to work on with us and would just as soon be out on his boat fishing, so we let him go.
I just got the initial letter from the Unemployment Office and he has been denied benefits, but has until 11/10 to appeal.
I have all the documentation on the interviews, what issues were uncovered, his job description and last performance evaluation which includes a self evaluation along with the manager evaluation. Anything else I should have?
Thanks,

Judith · November 2004

stick with the facts and let UI make their decision. Sounds like you handled the situation correctly.

Don D · November 2004

In your final post you ask, 'Anything else I should have?' Yes, you should have a safe exit plan once you enter that room at the UI office with this hot-head. Seriously, sit down with your boss and carefully evaluate the value of showing up at the hearing if he appeals.

JCInfo · November 2004

Ok. Yesterday afternoon, I got the letter of appeal from the state. The meeting will be next Tuesday and the Pres/CEO will be going with me.
I have all my documentation, but I would also like to present that our findings after this manager left clearly shows he was not doing his job and he had put the company at possible risk of close to $500,000.00, Based on this and that several of his employees were now coming to talk to me about issues they had with this manager, it is clear that if he had not resigned, we would have terminated his employment.
Any advice before I go into the lion's den?

hrbanker · November 2004

If your state is anything like ours, they won't accept anything that 'would have happened if...'

Stick with your original reason. He tendered his resignation... after a week to think about it, you decided it was in the best interest of everyone involved to accept his resignation.

I can't figure why you tried so hard to keep him when he seems to have been such a donkey.

JCInfo · November 2004

Well, I had my own opinion, but I was getting differing opinions from some of the partners. Some thought he was doing a great job and some were concerned. It wasn't until I got into his office and saw everything that was going on that I had enough concrete evidence to push for either a resignation or termination.
Based on this experience, we've made some changes in our communication process.

Don D · November 2004

First you and the CEO need to decide if you indeed do want to win this appeal. If the answer is no, then you won't go to the hearing. if the answer is yes, you must vigorously present your defense. All the hearing officer will want to know from you is what evidence you have that he resigned. It won't mean squat that you later discovered stuff that might have gotten him terminated. The only issue on the table at that hearing is "Why is the claimant out of work?" That is the only issue. The hearing officer will not be impressed by discussions of what different managers thought about his work. In fact that will not be allowed into evidence as you will not be able to testify as to what another person thought. You can present business records and you can testify as to what transpired in your presence. And, you will have an opportunity to directly question the claimant. Prepare your list of questions before hand and frame them as you would expect them to be asked in a courtroom. Your question will plant a thought in the hearing officer's head and the claimant's response will be the determinant as to where that thought goes. Be firm. Don't hesitate to tell the claimant, "You have not answered my question." Or, "I appreciate all of that opinion, but my question to you was........"

Several questions that come to mind are: "Did you or did you not tell me in my office on (date) that you were resigning your job? And, after having said that, did you not get up and leave my office and leave the building?" and "Did you say to me and Mr. CEO that you had reached the end of your rope and thought it best to separate yourself from the company?"

The bottom line is that you want your questions and the claimant's testimony to convince the judge that the man is out of work as a result of his own actions, not yours.

Typically, both you and the CEO will not be able to sit in the room at the same time. One of you will be the company's representative and the other will be the company's witness. Prepare your questions and rehearse them and the answers. Be prepared also for the claimant to question your witness and anticipate those questions.

No arguing. Be professional. Be prepared. Be thorough. Have a concluding statement that will wrap up your case convincingly. Just a paragraph.

dchr9203 · November 2004

Do not go there at the hearing! Stick to the facts and events up to his last day only. If you imply that you may have terminated/laid off/whatever eventually, you may lose the appeal.

NM _Tom · November 2004

This is all good advice. Keep it clear in the hearing that he resigned on multiple occasions, and the company finally accepted the resignation. I would even say in my opening and closing statements that he caused his separation by repeately verbalizing his resignation and intent to leave. You will be questioned on why he offered his resignation and you should demonstrate that it was a legitimate performance deficiency that you were attempting to address. You should also indicate that he would still have his job had he not resigned- continuing employment was available. (no need to tell them that you would have fired him at some point for being an insubordinate, stubborn, jacka**) These points should disqualify him from a "resignation for good cause" agrument. He would then have to prove that you discharged him in order to prevail.

Don D · November 2004

I hope you won't mind that I disagree Tom. The hearing officer should not allow into testimony any such speculation as 'why do you think he resigned'. That is certainly not fact based and has no place in the record and I would not answer that question if asked. And if she testifies that he 'repeatedly verbalized his resignation and intent to leave', she had best have solid testimony as to dates, who was present, what specifically she heard him say and what her responses were.

It will be HIS testimony, not hers, that might lead to a discussion of WHY precisely he said what he did in his apparent resignation. She can only speculate as to his reason, meaningless. He can state why he did what he did, if the judge cares to ask, and the employer may have an opportunity to respond, but it will be largely irrelevant since their comment about HIS reasoning won't have much factual basis.

I don't remember my specific hearings in that state, but in this state, this would be the situation.

Resignation or Terminated?

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