To terminate or not to terminate... that is the question!

I was wondering if you guys could help me. I have a question regarding an employee who gave notice (we requested resignation rather than firing her). We allowed her 3 weeks – then changed it to 2 when she found a new job. The thing is, she promised to give us that time, then decided not to show up leaving us in quite a pickle. Since she determined to just stop showing, my employer asked me to fire her for job abandonment.

However, there are a few catches and I don’t think this is a good idea.

This is the problem in a nutshell:

First – no written warnings
Did she get them? Yes. Were they signed? No. Why? We were being NICE does NOT stand up in court even though that is it precisely.
We wanted to give her a great parting review and help her find a new job with a great parting reference etc. – But this does NOT hold water. Why would you do that if you were firing her?
Why was she being fired? Poor job performance and shoddy attendance. What does her review say about her attendance and her performance? It doesn’t really say anything about it. So again, it looks as if we are firing her for no justifiable reason. AND while “at will” may mean for ANY reason – “we just did” won’t float and “at will” still has to have a valid, provable reason.

Second – it would really look like retaliation all the way down the line. Why? Because, the only real case we could build would be the tension and the situation between her and her supervisor. How could that be retaliation? Well, she filed complaints. By law, if an employee comes to you due to unresolved conflict that is causing issues in the work place, it is your job and responsibility to do everything possible to rectify the situation first. We did not launch a formal investigation into the situation. We did not take the supervisor to task until after we demanded the employee’s resignation. We did nothing really until after the fact. Thus, if she filed claim (not saying she would, but you never know and preparation is the only real defense), she could sue us for wrongful termination. And, she would win.

So… how does one go about handling this? I told my boss this and he still claims job abandonment would hold up but I don’t think he is really looking at the bigger picture here. I could be wrong, and it may be a verifiable reason for termination. But with everything else in the mix… it just seems like an open invitation to a law suit.

What is your opinion?


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  • I have read and re-read this to be certain that I have all of the facts and concerns as you see them. I have one question to ask and it may be (at least to me) the one thing that you need to decide.

    If the EE is terminated will it be for cause or will it be because the EE no longer shows up for work (abandonment)?

    If you were to go back and try to build a case against her then I agree that you have some inherent problems. On the other hand you say  you asked her to resign. Perhaps she did not provide an answer verbally but her intent not to return is evident in that the EE has accepted another job and apparently is now employed/working  there. Lastly the EE has not shown up to work. I don't know how long the EE has not shown up but certainly that can't last forever.

    With that said and I know that my information is limited by what you have revealed, but my impression is that you do not have to "terminate" for any cause so you will not have to defend a "cause" with weak documentation. I would end employment with the EE based on a voluntary separation without prejudice. This would mean that you are saying that you are not using a 'for cause' termination but that you can't keep the position vacant either. That would expose you to the possibility of having to pay unemployment benefits if the EE were to lose the current position before the qualifying time for the current employer to have to assume that responsibility.  So you will have to choose your poison.

    As far as references go it would seem as if 'being nice' has caused you enough trouble. I advise to stick to general information. Employment date yada. . yada and so on. Someone else may see something different. I appreciate your concerns as well but I think the answer is simpler than you think.

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