He said: “I quit,”…but did he?

Yo, listen up, folks!  In my practice, I often see scenarios where employers would much rather see a certain employee take a hike instead of lingering around. Especially those that perform poorly, whine all the time, and, more often than not, put a damper on the morale of the rest of the staff. In my world, I read a lot about cases between employers and employees fighting over a dismissal. These cases are often interesting, educational, and, at times, even entertaining to read. My world is filled with these stories that start with: “

“the employer let go of the employee because of XYZ,” 

and then they end up fighting in court.

Believe it or not, there are also stories that start with:

“the employee walked in, said I quit” 

leave the job to go home (or to the nearest bar)…and then they want to come back and say: “I didn’t mean it, I want my job back”. When this happens often they end up fighting in court. In this week’s column, I will address these rather peculiar cases.

He quit

So; your employee is quitting, huh? No worries; it happens to the best of us. But before you go ahead and let them hit the road, there are a few things you need to know and some to keep in mind.

What you need to know

Under Aruba law, when an employee voluntarily resigns from their job, it is generally considered a clear and unambiguous termination of their employment contract. However, in some circumstances, an employee may regret resigning and seek to return to their job, a.k.a. that warm, safe, and cozy place that gives them a check every month or every quincena (15 days) as the case might be.

If an employee resigns in an emotional state of mind, while under the influence of alcohol (or drugs), or due to psychological pressure, the employer may need to investigate whether the resignation was an explicit and informed decision. If there is any doubt about whether the employee intended to resign or if they will regret their decision later on, you my friend may need to take extra steps to ensure that the resignation was indeed a clear and unambiguous termination. One of the things you can do is to allow the employee a few days to reconsider their decision, let it sink in, and seek legal advice. If the employee confirms his decision to resign after this period, you can write him a nice farewell letter confirming the termination. Prepare the last payroll and issue the required reference letter or testimonial. This increases the likelihood that the employee will be considered terminated in court. Remember, as the great Chinese general said many moons ago: “to the retreating enemy, golden bridges”. 

If you fail to take these steps and a court finds that the employee did not intend to resign or that the resignation was not clear and unambiguous. In that case, you may be required to continue paying the employee’s wages retroactively, and what might be even worse, you will have to see him every day. Remember that an employee who resigns because of a new job – because the grass is always greener on the other side – and later regrets their decision cannot simply return to their old job. Suppose the employee wishes to return to their old job within days or weeks after termination. In that case, you may need to be cautious about the potential consequences of re-hiring the employee, especially if the previous employment contract was for an indefinite period.

If he is stressed or emotional

If your employee is quitting in a moment of stress or high emotions, or maybe after a few too many drinks or under some kind of mental duress, you might want to double-check that they’re sure about it. Remember that nowadays, even the slightest FB post can offend someone, sending them into an emotional rant. Even a lost shark swimming too close to the beach can become the day’s biggest news and lead some folks into hysteria. You need to be careful because you would rather not end up in court over some misunderstanding. Going to court costs money, unless you are an employee, and you get the gobierno (aka the state) to pay for your adventure in court. 

Keep these things in mind.

Now let’s say that he said: “I quit ” consider the following actions before you uncork the bubbly or hire someone else to fill up the spot immediately.

First, make sure that the date they want to peace out works for you, too. During their trial period, they can leave without warning or notice during the trial period, so watch out for that. After that, they’ll usually need to give a month’s notice unless you mutually agree to something else in writing. They’ll likely owe you cash if they try to dip out early or leave without giving the proper heads-up. So, you can offset that with any wages you owe them and call it even.

Ask the right questions.

If you have any doubts, it’s your job as a good employer to ask some questions. Like, are you sure about quitting, or are you going to regret it once you clear your head (or sober up)? Do they know what will happen if they go through with it, like losing out on steady pay, pension accrual, and certain other benefits? If you get the impression that they might not be thinking straight, it’s a good idea to give them a little time to cool down and think things over. Maybe suggest they talk to a lawyer, their union rep, or someone they trust before making any big moves. If they still want to go through with it after that, get it in writing, so you’re both on the same page.

Crawling back

Oh, and if your ex-employee comes crawling back after a hot minute, asking for his old job around, be careful. If they’re trying to come back within a certain number of days or even a certain number of weeks, it could mess with your whole contract situation. So, think twice before giving them a new job right away.

Alright, that’s it for me, folks. If you have any questions, feel free to reach out to #YourFavoriteLawyer #BoAbogadoFaborito.

Stay cool, and don’t let those quitters get you down!