If an employee asks you to “fix his unemployment”, can you fire him, and what are the risks involved?
It is a well-known practice whereby an employee informs the company of his resignation, but asks the company to “fix his unemployment papers” – i.e. to carry out an agreed dismissal that will allow him to receive unemployment benefits – and the company agrees to this request, formalising, for example, a disciplinary dismissal for unjustified absences in order to sustain an apparently involuntary termination that places the employee in a legal situation of unemployment.
In this case, on the one hand, the worker may be considered to have committed fraud by having provoked a disciplinary dismissal for unjustified absences in order to obtain unemployment benefits to which he/she would not have had access if he/she had left voluntarily. Some provincial directorates of the SEPE are refusing benefits claimed under a dismissal for absenteeism on the grounds that the worker himself has committed a very serious offence of “acting fraudulently in order to obtain benefits”.
On the other hand, penalties are being imposed on companies for colluding with their workers to obtain undue benefits. Therefore, even if there are genuine unjustified absences and it makes sense to carry out a disciplinary dismissal, you should find out what the employee’s intention is before notifying Social Security of the termination of the contract. To do this, it is advisable to contact the employee (by burofax, e-mail or even WhatsApp if it is a common means of communication in the company) to find out the reason why he/she has not come to work; in other words, to formally request that he/she justify his/her absences.
Once the employee’s intention has been verified, if he/she does not respond or persists in his/her absences or even if he/she proposes to reach some kind of agreement so that the company can facilitate the collection of unemployment benefits, the company can indicate his/her tacit resignation as a cause for termination.
Our professionals will advise you on how to carry out the termination of contracts to avoid incurring an unfair dismissal or an administrative sanction.