Letter to Attorney

Dear Attorney,

I hope this message finds you well. I have a question regarding employment law, specifically concerning an employee who resigns during her probationary period. Could you kindly clarify whether or not such an employee is entitled to receive a salary upon resignation? I would appreciate it if you could provide a comprehensive overview, citing relevant legal provisions and jurisprudence, to help me understand this matter more thoroughly.

Thank you in advance for your time and legal expertise. I look forward to your guidance on this issue.

Sincerely,

A Concerned Employer

Resignation During Probationary Period: Entitlement to Salary Under Philippine Law

In the Philippines, the employment relationship between an employer and employee is governed by several provisions of the Labor Code of the Philippines, along with relevant jurisprudence and administrative guidelines issued by the Department of Labor and Employment (DOLE). One key issue that frequently arises is whether an employee, who resigns during the probationary period, is entitled to a salary. To address this concern, it is important to understand the nature of probationary employment, the rights and obligations of employees, and how Philippine labor laws regulate salary entitlements upon resignation.

I. Definition of Probationary Employment

Probationary employment is defined under Article 296 (formerly Article 281) of the Labor Code of the Philippines. It refers to the period within which an employee is placed on trial to assess their qualifications and fitness for regular employment. During this period, the employer is given the opportunity to evaluate whether the probationary employee meets the standards and expectations required for the position.

The probationary period typically lasts six months, unless a shorter period is stipulated in the employment contract. However, under special circumstances, the probationary period may be extended beyond six months (e.g., in cases of legitimate reasons like illness or incapacity). Upon the expiration of the probationary period, if the employee is not dismissed for just cause, they automatically become a regular employee.

II. General Rule on Salary Entitlement During Probationary Period

Under Philippine law, probationary employees enjoy the same rights and protections as regular employees, except for security of tenure, which means that their employment can be terminated more easily during the probationary period, provided that termination is based on just cause or failure to meet performance standards.

Wages, including salaries, are rights afforded to all employees, regardless of their employment status. Article 94 of the Labor Code affirms this by establishing that employees, regardless of whether they are regular, casual, probationary, or contractual, are entitled to wages for work rendered. In particular, probationary employees are entitled to receive compensation for services rendered during the period of employment.

Therefore, if a probationary employee works for any period of time, even for a short duration, they are entitled to be compensated for the work they performed. This entitlement is consistent with the fundamental principle of "no work, no pay," as codified in Article 97 of the Labor Code.

III. Resignation During Probationary Period

When an employee resigns during the probationary period, there is often a question of whether the employer is required to pay the employee their salary. To analyze this, it is important to distinguish between resignation and termination. Resignation refers to the voluntary decision of an employee to sever the employment relationship, while termination generally refers to an employer’s decision to end the employment for just cause or failure to meet performance standards.

A. Notice of Resignation

Article 300 (formerly Article 285) of the Labor Code governs the rules on resignation in the Philippines. An employee may resign voluntarily by providing a written notice of resignation at least 30 days in advance. This requirement applies to all employees, regardless of employment status, including probationary employees. The purpose of the notice period is to allow the employer sufficient time to find a replacement or make necessary adjustments to minimize disruption to business operations.

However, an employee is not always required to comply with the 30-day notice requirement. The law provides certain exceptions, allowing an employee to resign without notice under specific circumstances, such as:

Serious insult by the employer or their representative;
Inhuman and unbearable treatment by the employer;
Commission of a crime by the employer against the employee or their immediate family;
Other analogous reasons.

If the employee voluntarily resigns during the probationary period, they are still entitled to receive the salary for the services they rendered up to the effective date of their resignation, regardless of whether or not they complied with the 30-day notice period.

B. Consequences of Non-Compliance with the 30-Day Notice Requirement

If the employee fails to provide the required 30-day notice and resigns immediately, the employer may suffer financial loss or inconvenience. In such cases, the employer may seek remedies, such as holding the employee liable for damages, but this does not negate the employee’s right to receive compensation for the days they worked prior to their resignation.

In this context, it is important to note that an employee’s entitlement to salary is separate from the requirement to provide notice. Failure to comply with the notice requirement may give rise to an action for damages, but it does not affect the employee’s right to be compensated for services already rendered. As reiterated in various rulings of the Supreme Court, "wages are earned by the performance of services," and an employee cannot be deprived of their wages simply because they resigned during probation without notice.

IV. Salary Entitlement Upon Resignation

Given the above principles, the legal question of whether an employee who resigns during the probationary period is entitled to a salary is straightforward. Yes, the employee is entitled to a salary for the work rendered during the probationary period, even if they resign before the probationary period ends.

For services rendered up to the date of resignation: Employees are entitled to receive the salary for the days they worked prior to the effective date of their resignation. This is in line with the Labor Code provisions on wages and Article 116 of the same Code, which prohibits the withholding of wages.
Pro-rated salary: The employee will receive their salary on a pro-rated basis if they resign in the middle of a pay period. The employer is obligated to release the employee’s final pay, which includes all earned wages, pro-rated 13th-month pay, and any unused leave benefits, if applicable.
Other monetary benefits: If the employee is entitled to additional benefits such as allowances, overtime pay, or commissions, these should also be released upon the employee’s resignation.

V. Final Pay After Resignation

As an extension of the issue of salary entitlement, it is also important to address the release of the employee's final pay after resignation. The Department of Labor and Employment has issued guidelines through DOLE Labor Advisory No. 06-2020, which clarifies that an employee’s final pay should be released within 30 days from the date of resignation, unless a different period is agreed upon by both the employer and employee. The final pay includes all earned wages, allowances, 13th-month pay, and other benefits owed to the employee.

VI. Termination During the Probationary Period

It is worth noting that if the employee is terminated during the probationary period for just cause, or for failing to meet the employer's reasonable standards for regularization, the employee is still entitled to their salary up to the effective date of termination. Probationary employees cannot be deprived of their salary simply because they failed to meet the required standards for regular employment.

VII. Practical Implications for Employers

For employers, it is crucial to maintain clear policies regarding probationary employment and resignation procedures. Employers should:

Ensure that all employees, including probationary employees, are provided with employment contracts or agreements that clearly stipulate their rights and obligations, including their entitlement to salary.
Implement systems to promptly release final pay after resignation or termination, in accordance with DOLE guidelines.
Establish procedures for addressing resignations without proper notice, including the possibility of seeking damages in cases where an employee fails to comply with the notice requirement.
Provide proper documentation and communication channels to avoid disputes over final pay and resignation procedures.

VIII. Conclusion

In summary, an employee who resigns during the probationary period is unequivocally entitled to receive a salary for the work they have performed. Resignation, whether done with or without notice, does not affect an employee's right to receive compensation for services rendered. Employers are legally obligated to release the employee’s earned wages and other benefits within the prescribed period after resignation. Failure to do so can expose employers to potential liabilities under labor laws.

While an employer may seek recourse for damages in cases of resignation without proper notice, this does not negate the employer’s obligation to pay the employee’s salary. Ultimately, both employers and employees must abide by the labor laws governing employment relationships to ensure that the rights of all parties are respected and upheld.