Notice to Explain for Absences Prior to Effective Date of ResignationAtty Elvin
Article 300 of the Labor Code provides that 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. The employer upon whom no such notice was served may hold the employee liable for damages.
For instance on October 30, 2019 Aya O. Napumasok submitted here resignation without mentioning the effective date thereof. By law, it is deemed that the effective date is November 30, 2019 following the one-month period.
If Ms. Aya stopped reporting for work on November 4, 2019 leaving the company with so much things to do due to lack of turnover. What is the remedy of the company?
As a matter of perspective, Aya cannot be physically compelled to work due to the constitutional proscription on involuntary servitude. Thus, based on her point of view, her submission of resignation puts into operation the said constitutional protection.
However, the employer is not helpless. Based on its point of view, the resignation did not take effect. His right to demand payment for damages arises. It may choose not to approve the resignation and the employment relationship shall be considered existing until the 30th day.
From the point of view of the employer, resignation requires acceptance to be effective.
Stated another way, for a resignation tendered by an employee to take effect, it should first be accepted or approved by the employer. (Guide to Valid Dismissal of Employees, 2nd Edition, by Atty. Elvin B. Villanueva, page 320, citing Mora vs. Avesco Marketing Corporation, G.R. No. 177414, November 14, 2008)
The reason for acceptance is the contractual nature of employment relationship which requires mutuality of consent between the parties.
Acceptance of resignation is recognition of the contractual nature of employment which requires mutuality of consent between the parties. An employment contract is consensual and voluntary. Hence, if the employee finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, then he has no other choice but to disassociate himself from his employment. (Guide to Valid Dismissal of Employees, 2nd Edition, by Atty. Elvin B. Villanueva, page 320, citing Philippine Today, Inc. vs. NLRC, 334 Phil. 854, 877 (1997))
To: AYA O. NAPUMASOK
Subject: NOTICE TO EXPLAIN WITH RETURN TO WORK
Date: November 6, 2019
It appears in our record that you have been absent from work since November 4, 2019 without any prior authorization from the company. A verification with HR reveals that you did not file an VL form.
Likewise, there is no record that you called in for being sick since November 4. Further, it appears that you submitted a letter resigning from work on October 30, 2019.
However, this remains to be acted upon by the company and it has not taken effect considering that the 30th day is November 30, 2019 and you still have to make a complete turnover.
In this regard, please explain in writing within five (5) calendar days from receipt of this notice why no disciplinary action should be taken against you for the absences. Likewise, you are hereby being directed to report for work immediately upon receipt of this notice.
For your strict compliance.
GAL I. TSALIVAN