Summary
▪ Resignation is a voluntary act on the employees wanting to terminate their employment.
▪ Employees are required to comply with the 30-day notice and service.
▪ The 30-day notice and service may not be necessary under certain situations.
▪ There are circumstances when a resignation notice and the 30-day render is not required.
▪ Resignation is effective on the employee if: (a) the employer accepts it; or, (b) the conditions for the 30-day render (or higher number of days per employment contract) is met.
1. Concept
“Resignation is the voluntary act of an employee who is in a situation where one believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and one has no other choice but to dissociate oneself from employment.” (Pascua v. Bank Wise Inc., G.R. No. 191460, 31 January 2018)
2. 30-day notice and service
An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. (Article 300 [a], Labor Code)
a. No specific format to notice
There is no specific format to the written notice. After the date of the document, mention of the immediate supervisor or the human resources department (depending on Company Policies), the body may simply indicate:
“I hereby tender my formal resignation effective 30-days after or on [indicate: last day].
“(Sgd.) Juan Dela Cruz”
Then, the notice should be signed by the employee.
b. Damages if 30-day notice not complied
The employer upon whom no such notice was served may hold the employee liable for damages. (Article 300 [a], Labor Code)
The employer may file an action for damages before regular courts (MTC/RTC), and not with the National Labor Relations Commission (NLRC).
c. When 30-day notice not required
An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes:
1) Serious insult by the employer or his representative on the honor and person of the employee;
2) Inhuman and unbearable treatment accorded the employee by the employer or his representative;
3) Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and,
4) Other causes analogous to any of the foregoing. (Article 300 [b], Labor Code)
d. Shortening of 30 days to render: employer’s option
“The 30-day notice requirement for an employee’s resignation is actually for the benefit of the employer who has the discretion to waive such period. Its purpose is to afford the employer enough time to hire another employee if needed and to see to it that there is proper turn-over of the tasks which the resigning employee may be handling.” (Hechanova Bugay Vilchez Lawyers, Hechanova & Co., Inc. v. Matorre, G.R. No. 198261, 16 October 2013)
e. Longer period for notice and service
The employer and the employee may stipulate in the employment contract to a longer period than 30 days (e.g. 60 day, etc.) if the position is highly technical resulting in a difficulty in hiring a replacement.
3. Acceptance by employer
a. Necessary to be effective – on the employer
“Acceptance of a resignation tendered by an employee is necessary to make the resignation effective.” (Shie Jie Corporation v. NLRC, Francisco, G.R. No. 153148, 15 July 2005)
CASE LAW Shie Jie Corporation v. NLRC, Francisco G.R. No. 153148, 15 July 2005 [Complainants-employees] were employed as fish processors by [the employers: referring to the Company and the management representatives]. On July 20, 1998, [the employers] … confronted them about their union activities. Immediately, they were ordered to go home. The next day, [the employers] suspended them for one week effective July 22 to 28, 1998 [except complainant-Wilfredo]. Upon their return, [the employees] were served with a notice of [the employers’] memorandum terminating their services for abandonment of work. [The employers], in their answer, denied [the employees’] allegations. [The employers] claimed that on July 20, 1998, about 2:45 o’clock in the afternoon, 13 rank-and-file employees staged a walk-out and abandoned their work. Among them were [the complainants-employees]. As a consequence, [the employers’] business operations were interrupted and paralyzed, prompting them to issue a memorandum suspending [the employees] for one week or from July 22 to 28, 1998. However, on July 24, 1998, [the employers], in another memorandum, directed them to report for work on July 27, 1998. Instead, respondents Ernesto…, Sorraya…, Yasher…, Yolanda …, Merylene…, and Wilfredo… submitted their resignation letters and quitclaims. Subsequently or on July 28, 1998, [the employers] sent [the employees] Arnold…, Nida…, Vivian…, and Manuel… a notice terminating their services for abandonment of work. [The Labor Arbiter ruled in favor of the employer. On appeal, the National Labor Relations Commission ruled in favor of the employees. On further appeal, the Court of Appeals ruled in favor of the employees.] [SC RESOLUTION: The employer was held liable.] Voluntary resignation is defined as the act of an employee, who finds himself in a situation in which he believes that personal reasons cannot be sacrificed in favor of the exigency of the service; thus, he has no other choice but to disassociate himself from his employment. Acceptance of a resignation tendered by an employee is necessary to make the resignation effective. No such acceptance, however, was shown in the instant case. Moreover, the fact that [the employees] immediately filed a complaint for illegal dismissal against [the employers] and repudiated their alleged resignation completely negated [the employers’] claim that they voluntarily resigned. In Molave Tours Corporation vs. National Labor Relations Commission, we held: “By vigorously pursuing the litigation of his action against [the employer], [the employee] clearly manifested that he has no intention of relinquishing his employment, which act is wholly incompatible to petitioner’s assertion that he voluntarily resigned.” Neither do we find any indication that [the employees] have shown by some overt acts their intention to sever their employment in [the employer]. In Samarca vs. Arc-Men Industries, Inc., we ruled: “x x x. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer. x x x Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. Clearly, the operative act is still the employee’s ultimate act of putting an end to his employment. Settled is the rule that mere absence or failure to report for work is not tantamount to abandonment of work. x x x.” In this case, [the employees] did not report back for work on July 27, 1998 because they were suspended by [the employers] for one week effective July 22 to 28, 1998. Verily, their absence cannot be considered abandonment of work, a just cause for termination of employment.
Author’s Note:
1) The Shie Jie Corporation case on the requirement that acceptance by the employer is necessary to effect a resignation should be read in relation to involuntary servitude under Article 1703 of the Civil Code, which reads: “No contract which practically amounts to involuntary servitude, under any guise whatsoever, shall be valid.”
2) The Shie Jie Corporation case cites Reyes v. CA, G.R. No. 154448, 15 August 2003, which in turn cites Indophil Acrylic MFG Corporation v. National Labor Relations Commission, G.R. No. 96488, 27 September 1993.
3) However, in the progenitor case of Indophil Acrylic MFG Corporation v. National Labor Relations Commission, the Supreme Court did not make the pronouncement that acceptance of the resignation letter is necessary to be effective; rather, it was an observation of the position taken by the Office of the Solicitor General. See below.
CASE LAW Reyes v. CA G.R. No. 154448, 15 August 2003 Leong Hup Poultry Farms SDN. BHD (Leung Hup) of Malaysia, thru its Managing Director Francis.., appointed [the complainant-employee] Pedrito… as Technical/Sales Manager with a net salary of US$4,500.00 a month. His duties consisted of selling parent stock day-old chicks and providing technical assistance to clients of the company in Malaysia and other Asian countries. Sometime in 1992, the company formed Philippine Malay Poultry Breeders, Inc., (Philmalay) in the Philippines. [The employee] was appointed General Manager thereof with a monthly salary of US$5,500.00. In 1996-1997, [Leung Hup and Philmalay, collectively “the Companies”] suffered losses which caused them to reduce production and retrench employees in Philmalay. On June 30, 1997, [the employer] gave verbal notice to respondent Francis… that he will serve as General Manager of Philmalay until December 31, 1997 only. In a letter dated January 12, 1998, [the employee] confirmed his verbal notice of resignation and requested that he be given the same benefits granted to retrenched and resigned employees of the company, consisting of separation pay equivalent to 1 month salary for every year of service and the monetary equivalent of his sick leave and vacation leave. He likewise requested for the following: 1. payment of underpaid salary for the period December 1989 – December 31, 1997 together with the additional one month salary payable in December of every year which was paid at the rate of P26.00 instead of the floating rate; 2. brand new car (Galant Super Saloon) or its equivalent; 3. life insurance policy in the amount of US$100,000.00 from December 1, 1989 to December 31, 1997, or the premiums due thereon; 4. office rentals at the rate of US$300.00 or its peso equivalent for the use of his residence as office of Philmalay for the period December 1, 1989 to July 1996; and 5. retention of the services of the law firm Quasha Ancheta Pena and Nolasco Law Firm, which was hired by respondents to defend him in the illegal recruitment case filed against him in connection with his employment with respondents. In a letter dated January 19, 1998, respondent Philmalay retrenched [the employee] effective January 20, 1998 and promised to pay him separation benefits pursuant to the provisions of the Labor Code. He was, however, offered a separation pay equivalent to four months only, or the total amount of P578,600.00 (P144,650 x 4). The offer was not accepted by [the employee] and efforts to settle the impasse proved futile. [The Labor Arbiter ruled in favor of the employee. On appeal, the NLRC affirmed the LA's ruling with modifications. On Appeal, the employer's petition was denied due to technicality.] [SC RESOLUTION: The employer was not held liable. The employee was validly dismissed.] The Court finds that [the employee’s] dismissal from service was due to retrenchment. This is evident from the termination letter sent by Philmalay to [the employee], to wit – We regret to inform you that in view of the prevailing market conditions and the continuous losses being incurred by the company, the management has decided to cut down on expenses and prevent further losses through retrenchment of some of our personnel effective January 19, 1998. In compliance with the requirement of the law, this will serve as a formal notice to you of your termination due to retrenchment effective January 20, 1998. To provide you with sufficient time to seek alternative employment, you need not report for work (unless otherwise requested) starting January 20, 1998. Notwithstanding the above mentioned affectivity date, you may come down to the office and receive your separation benefits pursuant to the Labor Code… While it is true that [the employee] tendered his resignation letter to [the Companies] requesting that he be given the same benefits granted by the company to resigned/retrenched employees, there is no showing that [the Companies] accepted his resignation. Acceptance of a resignation tendered by an employee is necessary to make the resignation effective. No such acceptance, however, was shown in the instant case. What appears in the record is a letter terminating the services of [the employee] due to retrenchment effective January 20, 1998. Verily, said letter should be interpreted as a non-acceptance of [the employee’s] resignation effective December 31, 1997. As correctly pointed out by the Labor Arbiter, if [the Companies] considered [the employee] resigned as of December 31, 1997, then there would be no need to retrench him.
Indophil Acrylic MFG Corporation v. National Labor Relations Commission G.R. No. 96488, 27 September 1993 [The complainant-employee] was employed as Cadet Engineer by [the employer], a supervisory position, on February 14, 1989. His monthly salary was P2,050.00. On September 26, 1989, he was prevented by the company guard from entering the premises, on the ground that he has resigned. Thus, on October 4, 1989, he filed a complaint for illegal dismissal against [the employer] and also for non-payment of salary from September 10, 1989 up to September 25, 1989, underpayment of salary from September 1, 1989 up to September 15, 1989, and award of moral and exemplary damages. [The employer], however, contradicts the allegations of [the employee] with respect to the circumstances which led to the severance of his employment. According to [the employer], [the employer] submitted his letter of resignation on September 14, 1989, which it accepted. On September 15, 1989, [the employee], by means of false pretenses, retrieved his letter of resignation from the office secretary and from then on, no longer reported for work. In view of said failure by [the employee] to report for work, the personnel manager of [the employer] sent him a letter dated October 2, 1989, requiring him to report and explain his unauthorized absences within three (3) days upon receipt thereof. Instead of submitting a reply thereto, [the employee] filed the present complaint. [The Labor Arbiter ruled in favor of the employer. On Appeal, the National Labor Relations Commission ruled in favor of the employee. [SC RESOLUTION: The employer was not held liable. The employee's complaint was dismissed.] The Office of the Solicitor General supports the questioned decision and resolution of public respondent [NLRC]. It maintains that [the employer] had not yet accepted the resignation of [the employee], citing the October 2, 1989 letter requiring private respondent to report for work and to explain his unauthorized absences. Another is the failure of [the employer] to present in evidence anything that will prove its allegation that the resignation of [the employee] had already been accepted (e.g., a reply acceptance letter). Thus, [the employee] could validly withdraw the same from [the employer] even without the latter’s consent. The pertinent entry in the log book of the security guard is proof that [the employee] was actually barred from entering the premises on September 26, 1989. Neither the Labor Arbiter’s decision declaring the dismissal of [the employer] legal, on the basis of his resignation and abandonment, nor public respondent’s resolution declaring the dismissal illegal, on the allegation that [the employer] was barred from entering the premises by the company guard, is correct. We have turned a heedful eye on all the pleadings and evidence submitted by the parties and have concluded that there was NO DISMISSAL. Setting aside the other arguments of the parties which we find irrelevant, attention is called to the letter dated October 2, 1989 of [the employer’s] Personnel Manager, Mr. Nicasio…, to [the employee] which the latter does not dispute, the full text of which reads: “Records show that you have not been reporting to (sic) work since September 16, 1989 up to this writing. For what reason, we are not aware. With this letter, you are required to report to this office and explain your unauthorized absences within three (3) days upon receipt hereof. Failure to report as required shall mean that we will consider you having resigned for abandonment of job.” (sic) Clearly, therefore, [the employer] had disregarded [the employee’s] previous resignation and still considers him its employee. It follows, that at the time [the employer] filed his complaint for illegal dismissal before the Labor Arbiter, on October 4, 1989, [the employer] has not dismissed him.
1) Submission: To harmonize the appearing conflict
To harmonize the appearing conflict, it is submitted that:
a) Resignation is effective as against the employer – only if the employer accepts it.
b) Resignation is effective on the employee – if:
i.) The employer accepts it; or,
ii) The conditions for the 30-day render (or higher number of days per employment contract) is met.
In the above scenario, the following legal basis will be harmonized:
1) Full protection clause in the 1987 Constitution
2) 30-day render provision in the Labor Code
3) Involuntary servitude in the Civil Code
4) Acceptance of resignation principles under Jurisprudence.
It is thus humbly submitted that the Supreme Court may look into this and hopefully have clarification on this matter via new jurisprudence.
b. Acceptance finalizes resignation, withdrawal up to employer
“Once an employee resigns and his resignation is accepted, he no longer has any right to the job. If the employee later changes his mind, he must ask for approval of the withdrawal of his resignation from his employer, as if he were re-applying for the job. It will then be up to the employer to determine whether or not his service would be continued. If the employer accepts said withdrawal, the employee retains his job.” (Intertrod Maritime, Inc. v. NLRC, G.R. No. 81087, 19 June 1991)
4. No separation pay
Resigning employees are not entitled to separation pay, which is due only for authorized cause separation.
5. Employment contract, company policies, CBA
The above discussions may be superseded by any stipulation favorable to the employee via an employment contract, company policies, collective bargaining agreement, or analogous thereto.
References
▪ Presidential Decree No. 442, Labor Code of the Philippines
▪ Jurisprudence or Supreme Court Decisions (as cited above)
