Did this guy quit, or did I fire him?

[Procrustus]

@get_lives

Really? I was fired about 18 months ago from a university, won my unemployment claim, and have idly wondered if their premium went up as a result. I don’t know how many claims they get against them, and how many they lose, but I imagine it’s a very small number, especially with losing claims.

We let most of the (few) people we “let go” file for unemployment without a fight from us. Our premiums remain low.

[GESancMan]

I used to run a restaurant, and had this kind of thing happen more than a few times. After pulling too many no-shows, and employee would wonder why I’d taken them off the schedule. When they inevitably filed for unemployment and the unemployment office sent me a form to fill out, I would write a sentence or two saying “so-and-so failed to show up for work x number of times, and after repeated warnings, I took the final no-show as their resignation.” That was always sufficient for the unemployment claim to be denied.

This was in California, ten to fifteen years ago, so I don’t know if things have changed.

[kopek]

“He texted me late Monday night, and said he would be in at 10:00 AM, as he was staying up late watching basketball. I replied and told him if he wasn’t going to be there by 9:00 AM, to not bother coming in at all.”

Sorry to say but at that point, to me, you fired him.

[Eva_Luna]

Even if you are determined to have fired him, it sounds like it was for insubordination. I’d certainly hope he wouldn’t get unemployment benefits. He was given one basic thing to do - show up - and he didn’t.

[Cat_Whisperer]

@stillownedbysetters

Send him a termination letter immediately, specifically mentioning all the tardies and that his continued lateness violated your stated company policies. Mention that it constitutes job abandonment. Send it registered mail so he has to sign for it. Once he signs for it, and if he doesn’t contest it, he has accepted it.<snip>

That sounds like a very good way to handle it.

@GESancMan

I used to run a restaurant, and had this kind of thing happen more than a few times. After pulling too many no-shows, and employee would wonder why I’d taken them off the schedule. When they inevitably filed for unemployment and the unemployment office sent me a form to fill out, I would write a sentence or two saying “so-and-so failed to show up for work x number of times, and after repeated warnings, I took the final no-show as their resignation.” That was always sufficient for the unemployment claim to be denied.<snip>

I believe that’s known as job abandonment, and it considered to be a resignation. It is probably the worst way to quit, though - you screw over a lot of people that way, because no one knows if you’ll show up for work today or not.

[get_lives]

@Procrustus

We let most of the (few) people we “let go” file for unemployment without a fight from us. Our premiums remain low.

They fought it, and lost at every level (3 levels, next would have been court, I think). Does that make a difference?

[Siam_Sam]

I say he quit, but I can see where an argument could be made that he was fired. However, if it’s determined he was fired, it was clearly for gross rules violation, so surely that would make him ineligible for unemployment benefits? He probably doesn’t realize that.

[Voyager]

@stillownedbysetters

Send him a termination letter immediately, specifically mentioning all the tardies and that his continued lateness violated your stated company policies. Mention that it constitutes job abandonment. Send it registered mail so he has to sign for it. Once he signs for it, and if he doesn’t contest it, he has accepted it.

Which reminds me. I had an intern a long time ago who was great the first summer, but the second summer after maybe a week of work vanished. Even his mother didn’t know where he was. Eventually HR sent him a letter basically firing him for lack of attendance. I don’t recall the exact text, but I certainly remember it as firing for cause.
My understanding was that he would not get unemployment in this situation, and I’m glad that I appear to have understood right.
Many companies have certain do not cross this line policies - like hitting someone. That is considered an immediate firing offense. Would it make sense to say that someone who threw a punch resigned by doing so?

[bengangmo]

I say quit / fired for cause.

But would be interested in knowing what sort of official documentation there is in the file about lateness, and what sorts of discussions you’d had about it.

(Where I am, this would make a difference)

[Shodan]

ISTM that you fired him for cause.

It’s hard for me to believe that “I am going to be in late to discuss my tardiness because I am watching basketball” is an acceptable excuse for the unemployment folks, but I have been wrong before.

Regards,
Shodan

[sandra_nz]

An ex-manager of mine used the exact same wording ‘don’t bother coming in at all’ and the ex-employee successfully sued for unfair dismissal.

[Sir_T-Cups]

@Gatopescado

Does this mean you have a position open? If so, I’d like to talk to you about it, say, tomorrow around noon-ish?

But if you show up late just make sure it was a REALLY GOOD basketball game

[Sage_Rat]

Based on the descriptions given on this page, I am voting for “quit”. Specifically, these two parts:

Generally, a worker will not have good cause for leaving work until he has reasonably exhausted other opportunities for resolving his employment problems, including available grievance procedures, or discussing the problems with supervisors or management. If he quits without any effort to resolve problems with the employer, this does not reflect a genuine desire to remain employed.

There’s no evidence that the worker was interested in resolving any sort of grievance that may have existed between you. And given that it was you having a grievance with him, and not the other way around, and you had given a clear and reasonable method for resolving that grievance, the ball was definitely in his court.

Resignation in Lieu of Discharge:
When a worker is allowed to resign in lieu of a definite decision by his employer to discharge him, the separation will generally be treated as a discharge. It must be shown that the employer definitely intended to discharge the worker. The employer’s actions must be explicit, and must present the worker with no reasonable alternative but to quit. The employer who says: “Quit or get fired.” has effectively discharged the employee. No letter of resignation at this point can change the fundamental facts.

It cannot be shown that you definitely intended to discharge (fire) the worker. Further, the worker had a completely reasonable alternative to quiting. So this example is not applicable to your case, but would be the only one that he could use in support of his position.

[Anaamika]

@markdash

Staying up late watching basketball? The balls on this guy…

It’s not like I’d never excuse someone for this. If they were always on time, and this one time, called me to say they were going to be late - emphasize on the “going to be”, which means they called me before their start time - because of i don’t know, some playoffs or something, I’d be OK with that, even though I am not a sports fan.

This guy should get together with the guy in the other thread who thinks it’s too wearying to go on interviews and can’t he just have the job? (Of course, that guy scored the job!)

[Doug_K]

@sandra_nz

An ex-manager of mine used the exact same wording ‘don’t bother coming in at all’ and the ex-employee successfully sued for unfair dismissal.

Montana is the only state that doesn’t allow termination at will. And even there refusing to come in on time would still be considered good cause.

No U.S. state but Montana has chosen to statutorily modify the employment at-will rule.[24] In 1987, the Montana legislature passed the Wrongful Discharge from Employment Act (WDEA). The WDEA Act is unique in that, although it purports to preserve the at-will concept in employment law, it also expressly enumerates the legal bases for a wrongful discharge action.[15] Under the WDEA, a discharge is wrongful only if: “it was in retaliation for the employee’s refusal to violate public policy or for reporting a violation of public policy; the discharge was not for good cause and the employee had completed the employer’s probationary period of employment; or the employer violated the express provisions of its own written personnel policy.”

[Doctor_Jackson]

@Winston_Smith

I told him he needed to be in the office yesterday (Tuesday), on time, and be prepared to discuss his future with the company, which I made clear he was jeopardizing. We agreed he should be in the office at 9:00 AM, and not be late (he has been chronically late for weeks and weeks).

Overall I’m in the “You gave him a choice and he elected to quit” camp, but several things bother me and could have bearing on whether your actions were reasonable:

1. Perhaps I’m misinterpreting the “We agreed he should be in the office at 9:00” part. It almost sounds like he had no set core hours, but was abusing flex time - otherwise a simple “you know your set start time, don’t be late” woud have been sufficient.
2. The final ‘episode’, since it all happened in a phone conversation, boils down to your word against his. You say you offered him a choice of being on time or losing his job. If he says that you simply got angry and fired him, which assertion carries more weight? Hard to say without:
3. Do you have a written, distributed policy concerning employee tardiness and absences? Did the employee sign to indicate receipt of the policy? Do you have documentation of his previous tardiness/absences AND does that documentation clearly show how the employee was in violation of the written policy? Is the prior documentation acknowledged by the employee (like a signed, written counciling memo)?

If you can answer “Yes” to all of the questions in #3, you’re pretty well set. At worst it would likely be seen a firing for cause. If you answer is “No” to any of the questions, the issue has potential to become a murkey “he said/I said” cluster.

[VinylTurnip]

@markdash

Staying up late watching basketball? The balls on this guy…

Millennial, by any chance?

[Lanzy]

I own a restaurant and not showing up seems to be the popular way of quitting. I can usually hire someone by the end of the day to replace them. I had one guy show up 2 weeks after he no-showed like nothing had happened. he said he just “took” some time off. I had to tell him he took permanent time off.

Your guy quit.

[Sparky812]

@sinjin

Quit but learned he can’t get unemployment if he quits.

Yep.

Which explains the message on the following day that he will not be in. He’s phishing you for a response to the effect that he’s been terminated.

I’d be inclined to suspend the employee without pay until they were to return to work to discuss their behavior and resume their regular duties. His next move is either to return to work or quit.

Check and mate!

[robert_columbia]

@Sage_Rat

…It cannot be shown that you definitely intended to discharge (fire) the worker. Further, the worker had a completely reasonable alternative to quiting. So this example is not applicable to your case, but would be the only one that he could use in support of his position.

Right. Your messages to the employee did not conclusively state that the employee would be automatically fired if he did not resign. You gave him an option to come in on time the next day and at least have a reasonable chance to stay. You might have still fired him, but it was not clear that a firing was guaranteed even if the employee starting showing up on time. So that was not a resignation in lieu of firing.