Published — August 10, 2018
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
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Though employment may be terminated by the employer due to just and/or authorized causes, the employee may likewise validly terminate his own employment at his own instance. This is the concept of resignation, which is defined as the voluntary act of an employee who finds himself in a situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and, that he has no other choice but to disassociate himself from his employment. Resignation is a formal pronouncement of relinquishment of an office. It must be made with the intention of relinquishing the office accompanied by an act of relinquishment [See: G.R. No. 125028].
Notice requirement
Unlike in termination of employment by an employer, an employee may terminate his own employment with or without just cause, provided that he serves a written notice on the employer at least one month in advance. An employer upon whom no such notice was served may hold the employee liable for damages [See: Art. 300, Labor Code].
However, the notice requirement shall not be necessary in the following instances:
- Serious insult by the employer or his representative on the honor and person of the employee;
- Inhuman and unbearable treatment accorded the employee by the employer or his representative;
- Commission of a crime or offense by the employer or his representative against the person of the employee or his immediate members of his family;
- Other causes analogous to any of the foregoing.
Voluntariness of resignation
It is important that the employee’s act of resigning must be voluntary. Otherwise, it could be considered as constructive dismissal, which is also known as “dismissal in disguise”. In illegal dismissal cases, the fundamental rule is that when an employer interposes the defense of resignation, the burden to prove that the employee indeed voluntarily resigned necessarily rests upon the employer [See: G.R. No. 159195]. When resignation is found to be involuntary, then it may amount to constructive dismissal.
The concept of constructive dismissal
To begin with, constructive dismissal is defined as quitting or cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay and other benefits. It exists if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. There is involuntary resignation due to the harsh, hostile, and unfavorable conditions set by the employer. The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt compelled to give up his employment/position under the circumstances [See: G.R. No. 215627].
Significance of submission of resignation letter
When an employee submits a resignation letter, it then becomes his duty to prove with clear, positive, and convincing evidence that his resignation was not voluntary but was actually a case of constructive dismissal; that it is a product of coercion or intimidation. He has to prove his allegations with particularity.
Submission of a resignation letter may be treated as evidence that the employee could not have been coerced. Coercion exists when there is a reasonable or well-grounded fear of an imminent evil upon the resigning employee’s person or his property or upon the person or property of his spouse, descendants or ascendants [See: G.R. No. 174644].
Non-entitlement to separation pay
It is well to note that there is no provision in the Labor Code which grants separation pay to voluntarily resigning employees. Separation pay may be awarded only in cases when the termination of employment is due to: (a) installation of labor saving devices, (b) redundancy, (c) retrenchment, (d) closing or cessation of business operations, (e) disease of an employee and his continued employment is prejudicial to himself or his co-employees, or (f) when an employee is illegally dismissed but reinstatement is no longer feasible. In fact, the rule is that an employee who voluntarily resigns from employment is not entitled to separation pay, except when it is stipulated in the employment contract or Collective Bargaining Agreement, or it is sanctioned by established employer practice or policy [See: G.R. No. 117394].
Acceptance of resignation
Considering that the employee may terminate his own employment with or without just cause, it is not necessary for the employer to accept his resignation. However, in the event that the employer accepts the resignation, it may not be withdrawn without the consent of such employer. If the employer accepts the withdrawal, the employee retains his job. If the employer does not, the employee cannot claim illegal dismissal. To say that an employee who has resigned is illegally dismissed, is to encroach upon the right of employers to hire persons who will be of service to them [See: G.R. No. 112965].
Re-employment of resigned employees
A resigned employee who desires to take his job back has to re-apply therefor and he shall have the status of a stranger who cannot unilaterally demand an appointment. He cannot arrogate unto himself the same position which he earlier decided to leave. To allow him to do so would be to deprive the employer of his basic right to choose whom to employ. Such is tantamount to undue oppression of the employer. It has been held that an employer is free to regulate, according to his own discretion and judgment, all aspects of employment including hiring. The law, in protecting the rights of the laborer, impels neither the oppression nor self-destruction of the employer [Ibid].
With this, it is therefore clear that employment may be terminated not only by the employer, but also by the employee himself. This makes it important for employers to know what their rights are in case any of their employees exercise their option to terminate their own services.
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding termination of employment and other related matters, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
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