Can an employee claim wrongful dismissal or collect unemployment after only verbal warnings?

UPDATED: Sep 30, 2022

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Can an employee claim wrongful dismissal or collect unemployment after only verbal warnings?

We have an employee who has been absent from 50 of her scheduled shifts for
the past few months. At first, she claimed protection from the Family Leave Act
as she was going through her divorce. That ended at least two months ago,
though, and she is still consistently absent. Her excuses range from illness,
lack of child care, moving, and being sore from water-skiing over the weekend.
She has been given verbal warnings by her manager and the CFO to correct this
behavior, but no documentation was created for these conversations.

I am brand new to the HR department and want to make sure that we have the
correct documentation so that she can’t claim wrongful dismissal. I have
created a form for her manager to fill out that states there were previous
conversations about her behavior and the dates of those conversations to have
her sign as an acknowledgment that this is her final warning. When he asked her
to come talk to him, she said she wouldn’t be coming in for two weeks and that
if that meant she was fired, so be it. She has made it clear that she wants to
be fired and just collect unemployment, which we don’t think would be very
fair. I have called her to come in to have a brief meeting with me with no
return call. I want this form signed so that we are protected. How should I
handle it from here?

Asked on August 11, 2016 under Employment Labor Law, Oregon


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

There is no legal need for written warnings or a formal disciplinary process.  (Obviously, those can be helpful, in providing documentation/evidence, but they are not actually required.) If you are confident that you could at need support that she was terminated for unauthorized absences, whether by payroll information (e.g. days paid/not paid) and/or manager testimony, you can fire her "for cause" for the unauthorized absences and deny her unemployment benefits. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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