I gave severance notice and he never came back….

If you dismiss a worker for company reasons (despido objetivo) you have to give them severance pay and 15 days notice. What if the worker doesn’t come in during those 15 days? Can you save the severance fee and fire them for absence without leave?

Yes you can.

Case study: A company decides that it must save one salary and selects a worker to be dismissed. Since the dismissal is not the fault of the employee, it is a despido objetivo and full severance pay must be paid, as well as 15 days written notice of termination of employment. However, the day after notice is served the employee does not come into work and does not return phone calls. How then can you retract the despido objetivo and fire them for not coming into work, thus saving the severance fee?

Step 1

During the 15 day notice period the contract between company and employee continues as normal. Therefore, if during the 15 day notice period the employee commits an action that is punishable by dismissal (physical aggression, theft, etc) then the employee can be fired for disciplinary reasons instead of the despido objetivo.

However you first need to revoke the original despido before it takes effect. Before the 15 days are up you must communicate to the employee informing them of the decision not to rescind their work contract.

If you do not do this before the 15 days are up then the most you can do is sue the employee for damages caused.

Step 2

Once the employee has received notification that the original dismissal is not longer taking place, you can proceed to a disciplinary dismissal for the reason of being absent without leave from work. Send them a registered letter to their address explaining the reason for the new dismissal. You are not obliged to send them their finiquito (final salary) at this point, simply tell them that they must come to your offices to pick up their money (and have a cheque waiting for them).

Step 3

When you originally fired the employee, you had to pay them severance fee at the moment of notification. This money is now outstanding to your company, as the original dismissal is null and void. You therefore are entitled to get this back.

• You can take this money from the finiquito. The reason is that since the employee and the company both have outstanding monetary debts, it is perfectly legal to offset one debt against the other. If the employee stills owes you money once this adjustment has been done, you will have to ask for your money back, and pursue through the courts if it is still outstanding.

Important note: Each situation is distinct and it is important to follow the law to the letter in each case in order to prevent the employee from taking you to court for unfair dismissal. Consult with an employment law professional before taking any steps.