Resignation: The Legality of Stipulating Beyond 30-day Effectivity Period

Resignation: The Legality of Stipulating Beyond 30-day Effectivity Period

Resignation in most establishments requires employees to observe 30-day prior notice. This means that employees cannot automatically resign from work. The consequence of doing so under the Labor Code is payment of damages.

To define the term, 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.

It is a formal pronouncement or relinquishment of an office, with the intention of relinquishing the office accompanied by the act of relinquishment. As the intent to relinquish must concur with the overt act of relinquishment, the acts of the employee before and after the alleged resignation must be considered in determining whether he or she, in fact, intended to sever his or her employment. (See page 317, Guide to Valid Dismissal of Employees 2nd Edition by Atty. Villanueva, citing Gan vs. Galderma Philippines, Inc., G.R. No. 177167, January 17, 2013; Nationwide Security and Allied Services, Inc. vs. Valderama, G.R. No. 186614, February 23, 2011, 644 SCRA 299, 307- 308; See also BMG Records (Phils.), Inc. vs. Aparecio, G.R. No. 153290, September 5, 2007.)

Article 300 of the Labor Code states 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.

The question is, can the employer insist that a longer period than 30 days be observed? For instance, can the employer require that resignation should take effect after 60 days?

It depends. If the parties agreed in the contract that resignation should be made with 60-day prior written notice, or any longer period for that matter, then that stipulation is enforceable by the employer. But if there is nothing in the contract or any agreement that says so, there is no basis for the company to enforce.

The one-month prior notice required under the law provides a period for the benefit of the employer. Thus, the employer can shorten it. However, he cannot extend it. Otherwise, it can amount to involuntary servitude if the employee does not want to work beyond that period.

But if the employee agreed on a longer turnover period than 30 days then he is likewise bound by his commitment. Since the option not to be suffered to work beyond 30 upon submission of resignation is a right on the part of the employee, such right can also be waived.

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Under the Civil Code, rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. (Art. 6)

Waiver is defined as a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it. (F.F. Cruz & Co., Inc. vs. HR Construction Corp., G.R. No. 187521, March 14, 2012)

What are the rights that can be waived?

The SC held that the doctrine of waiver extends to rights and privileges of any character, and, since the word ‘waiver’ covers every conceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. (People of the Philippines vs. Donato, G.R. No. 79269, June 5, 1991, 198 SCRA 130.)

In sum, the employee has the right not to be required to serve beyond the thirty-day period after submitting his resignation. However, he can waive such right by agreeing, for instance, to observe a 60-day turnover period.

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