Resignation or not???????????

[laurajane]

I have an employee who has been with us for two years, I know recently he has been thinking of moving on allthough he has not has this discussion directly with myself. Anyway on Monday he called to say he was taking the day off sick, something he has never done before but of course i was fine with that and greatful he actually informed me. But i have not heard from him since, he will not answer his phone, My husband even went to the house today and he was not there. So my question is how long do i wait as essentially he is still working for me and i still have to pay him, I do have reason to believe he has or is looking for another job which is fine as like i said he has been very withdrawn and had quite a negative impact on my team lately.
I realize he has to produce a doctors certificate in order to recieve sick pay but if he is indeed well which i believe he is how long do i leave it before i take action? And if i actually fire him for this am i liable to pay severance or is it a with cause action? Also allthough i have not had verbal or written confirmation of his resignation does there become a point legally when it is automatically presumed after so many days without contact??

So many questions i know but really could use some advice.

Thanks

[Rocky]

It takes 3 legitimate complaints against an employee to legally dismiss him without liquidacion.
Each day that he does not show up could constitute a valid reason for a legitimate complaint.
You have to deposit the complaint with the Secretaria de Trabajo.
Your own papers will have to be in order, of course, to do so.
If you have an accountant, they should be able to do it for you.

[PICHARDO]

Forget the Secretaria de Trabajo and just make sure to have a person deliver a company issued letter (triple copy) to him, asking about his recent failure to show to work and lack of communication with you (the employer). Give him ample assurance that you're worried about his condition but biz being biz requires that you have his duties filled by somebody else. Ask him to let you know his stance on this and what's the route to follow. Even if he decides to quit the job (if not already done so) you'll be better served by paying his dully severance and all that the law requires from you as the employer. To this end you can do so via the Secretaria de Trabajo as noted (without the complaints). If you use the complaints to fire the guy via the SDT then you'll open yourself to open books and much scrutiny by the Secretaria (more than you'll want to ever have to).

The triple copy is your ace in the hole to fend off any demand from the guy in regards to pay he's not longer due since he failed to show up for work since his call. Make sure to include that piece of data in your letter addressed to him.

You must do this sooner than soon!

A non-show is not a complaint per se, so treating the absentee as a walk off is much desirable than not.

Have a co-worker deliver the letter to him...

The letter will provide proof to the Secretaria de Trabajo on the good faith of the employer (you) in view of the absence of the employee in case of any demand or litigation on his part against you.

[PICHARDO]

Sorry!! Didn't pay attention to the called to take the day off and mistook it for called in sick!!!!

Disregard my experience with called in sick-never showed up example atop!!!

Thanks Rocky for bringing the mistake up!

[MrMike]

Two consecutive days off (even if the employee calls in) is considered job abandonement, report his abandonement to the SET as soon as you can, and request a visit from an inspector.

When he/she comes back to work act like nothing happenned. The SET inspector may take a week or more to show up. When they do they will confirm the abandonment, intervew the employee in question and a few co-workers to try to get a consensus on the situation, and then assuming your story checks out, give you the green light to dismiss without severance pay. (you still have to pay Christmas bonus and Vacation pay for the year if you haven't already)

Financially it works out just the same as if the employee quits.

The emloyee may or may not show up with a medical certificate proving inability to work for the time that he/she was absent. If he does you no longer have grounds for dismissal but of course are not required to pay for the days missed either.

If you do not take these steps, even if the employee never comes back to work you are leaving yourself open for an "unjustified termination" lawsuit a month or so down the road when your employee runs out of spending money and decides to get one last paycheck from you, so you need to file the report no matter what you intend to do about your employee.

[laurajane]

The problem is i have found witht the secreteria de trabajo is them themselves are guilty of ignoring the law completley, someone i know recently had to fire a member of domestic staff and allthough stated in the Codigo de Trabajo that domestic workers are not entitled to liquidation they were told to pay it anyway, I also sometime ago now, no longer required the services of my hired driver and his van, I explained to secreteria de trabajo and was told to pay alot of serverance pay when i later found out that it was not neccessary as he was not classed as an employee.

I would like to issue the letter, but as initially he called in sick, legally do i have to presume he is still unwell and have to wait for him to contact me as maybe i could get in more trouble by firing someone while they have a legitimate reason not to be here. Sorry very confusing but many times i have tried to do the right thing and ended up being the victim. Allthough he is not answering the phone and not updating us on his condition. will it hurt for us to just wait for his call or visit, i will keep a record of all calls and attempts to contact him and ask my other employee's to witness it.

The triple copies you are referring to do you mean a letter for three continous days delivered to the employee or one letter with all three complaints, one copy for ourselves, one for employee and one for SDT? Sorry if i am being a bit dumb ha ha!

Thanks

[MrMike]

Get tough and stay tough or get screwed and stay screwed, your choice.

No matter how much of a relationship you think you may have with your employees they are trying to get as much money from you as possible and termination is their last chance to get paid so they are going to take full advantage of the opportunity, right or wrong.

Defend yourself by crossing all your i's and dotting all your t's or else pay the full severance and move on. Prolonging the agony doesn't help anybody.

If your employee doesnt want to be there he is going to get worse as time goes on and not better, and may begin to aggressively seek to get fired. If you have an opportunity to part ways with him cheaply you need to jump on it.

[laurajane]

Ok well my husband just contacted him and he said he is still sick and has not resigned. I presume i should still report the abandonment for the past week in case he is up to no good?
I will of course see if he provides a doctors certificate as he says he will be back to work tonight, but we will wait and see.

[MrMike]

That's the way we do it, I have over 100 employees and have had relatively few problems.

Dominican labor law is very slanted in favor of the employee, but job abandonment is one area where you can get a clear upper hand.

Many times employees will feign sickness so they can evaluate a new job opening or business oppotunity without making a commitment to leave their current place of work.

[laurajane]

So if he does return to work tonight, do i only have a certain amount of time to use the abandonment issue as cause for firing him? In other words if i document everything and he returns to work but in a matter of weeks he tries it on again i can use the previous complaint as cause to dismiss him, as i believe we have to fire him within 14 days of said incident if we decide this behavior is not acceptable. If not to much bother could you desribe step by step the actions you would take just so i am clear and don't leave out an important detail that could backfire. Thank you so much for taking the time to help me on this issue.