Letter to the Attorney
Dear Attorney,
I hope this message finds you well. I worked for an employer in the Philippines but ceased reporting to work around two years ago after giving birth. Due to various personal circumstances, I was unable to return to my duties, nor was I able to formally submit a resignation letter at the time. Now that I am in a more settled position, I want to clarify if I can still tender a proper resignation and settle any outstanding employment matters, even though such a long period has already passed since I last reported for work.
I am concerned about how the extended absence and the lack of a formal resignation might affect my employment record, benefits, and final pay. Could you advise me on the proper steps I should take to comply with Philippine labor laws and best practices in this situation?
Thank you very much for your guidance.
Sincerely,
A Concerned Employee
Comprehensive Legal Article on the Subject
As the best lawyer in the Philippines—one well-versed in labor standards, employment practices, and relevant statutory and regulatory frameworks—it is my goal to provide a meticulous and deeply informative analysis of the legal implications, rights, responsibilities, and recommended courses of action for employees who have been absent from work for a prolonged period and now wish to formally resign. Specifically, this discussion focuses on the scenario wherein an employee, following childbirth, has not reported back to work for approximately two years, and now seeks clarity on how to resign properly from employment under Philippine law.
1. Overview of Applicable Legal Framework
Under Philippine labor law, the fundamental statutes governing the employer-employee relationship include:
1.1. The Labor Code of the Philippines (Presidential Decree No. 442, as amended) – This code sets forth the basic rights and responsibilities of both employers and employees, including standards on wages, working conditions, leaves, separation pay, and other employment-related matters.
1.2. Implementing Rules and Regulations (IRR) of the Labor Code – Regulatory measures and guidance issued by the Department of Labor and Employment (DOLE) help clarify the provisions of the Labor Code. These IRRs assist in interpreting how the law applies in practice, including procedures on resignation, final pay, and clearance.
1.3. DOLE Advisories and Department Orders – DOLE periodically issues advisories and orders that provide more context or clarify best practices, including the procedural aspects of resignations and handling of final pay.
1.4. Jurisprudence (Supreme Court Decisions) – Philippine case law serves as a valuable reference for determining how courts interpret specific factual scenarios related to abandonment, maternity leave, extended absences, and eventual resignation. While not always directly on point, relevant doctrines may guide an employee seeking to understand their rights and obligations.
2. Maternity Leave Entitlements and Extended Absences
Before delving into the resignation aspect, it is crucial to understand the framework surrounding maternity leave and its aftermath. Under the Expanded Maternity Leave Law (Republic Act No. 11210) and its Implementing Rules and Regulations, female workers in the private sector are entitled to 105 days of paid maternity leave, with an option to extend for an additional 30 days of unpaid leave under certain conditions. The law provides significant protection to employees during and immediately after childbirth, ensuring that they have the necessary time to recover physically, care for their newborn, and eventually return to work if they so desire.
However, if an employee extends her absence beyond the allotted maternity leave period without proper communication, authorization, or subsequent leaves (such as parental leave, vacation leave, or a leave of absence approved by the employer), complications may arise. The employer may begin to view the prolonged absence as job abandonment or consider the employee to have resigned implicitly, depending on the circumstances. Philippine jurisprudence has established that job abandonment is generally characterized by the employee’s deliberate and unjustified refusal to return to work without any intention of continuing the employment relationship.
3. Distinction Between Resignation and Abandonment
3.1. Resignation Defined – Resignation is a voluntary act on the part of the employee to sever the employment relationship. Under normal circumstances, the Labor Code does not specify a strict period within which an employee must resign. Instead, the usual standard is to provide a written notice of resignation at least 30 days in advance, unless a shorter period is mutually agreed upon or stipulated in a contract or company policy.
3.2. Abandonment Defined – Abandonment is deemed a form of neglect of duty and occurs when an employee fails to report for work for a prolonged period without notice or a valid and justifiable reason. While the law does not provide a bright-line number of days or weeks that automatically constitutes abandonment, case law often requires both the intent to abandon and the overt act of not reporting to work. Intent can be inferred from circumstances such as lack of communication, extended absence, and failure to respond to employer inquiries.
In the scenario at hand, the employee did not report for work for approximately two years post-childbirth and did not file a formal resignation or secure an extended leave. From an employer’s perspective, this might be construed as abandonment. Nonetheless, even if an employer considers it abandonment, the employee might still take steps to clarify her employment status and properly resign.
4. Legal Implications of Late Formal Resignation
4.1. Right to Resign – Under Philippine law, resignation is essentially a unilateral act that an employee may undertake at any time. Though employees are generally required to give sufficient notice (30 days) for the resignation to be considered lawful, the lack of prior notice does not strip them of the right to end the employment relationship. However, failure to provide proper notice may have consequences on benefits, clearance, and the final pay process.
4.2. Employer’s Acceptance of Resignation – Acceptance of a resignation by the employer is not strictly required for the resignation to be effective. However, it is common practice for employers to acknowledge the resignation in writing. In a scenario where the employee has been absent for two years, the employer might already have considered the employee separated from employment due to abandonment. Nonetheless, providing a letter of resignation can help clarify the employee’s intent, potentially aid in settlement of any final pay issues, and facilitate the issuance of a certificate of employment.
4.3. Final Pay and Clearance – Under DOLE regulations, after an employee’s resignation or termination, the employer must settle the employee’s final pay within a reasonable period, typically 30 days from the date of the last day of employment. Final pay includes any unpaid salary, proportionate 13th month pay, unused leave credits (if convertible to cash), and any other benefits due under law or contract.
If the employee did not properly communicate with the employer for two years, complications may arise in the calculation and release of final pay. The employer may question whether the employee is entitled to certain benefits after such a long absence. Nonetheless, the employer is legally obliged to provide whatever final pay is due, subject to standard clearance procedures.
5. Factual Determinations and Documentation
In dealing with a case where the employee has not reported for work in two years due to childbirth and subsequent personal issues, the following factual considerations are significant:
5.1. Company Policies – Most companies have employee handbooks or policies that outline procedures for leaves of absence, the number of allowable absences, the notice period for resignation, and the protocols for handling employees who are absent without leave (AWOL). It is essential to review these policies to determine the employee’s entitlements or liabilities.
5.2. Documentation of Communications – If, at any point, the employee attempted to communicate with the employer—through email, text messages, calls, or other means—these communications could be crucial in establishing that there was no intent to abandon the job. Conversely, if the employer attempted to reach out to the employee without any response, this may bolster a claim of abandonment.
5.3. Impact on Employment Records – An employee’s prolonged absence without formal leave might lead to negative annotations in her employment record. A well-structured resignation letter now, even after two years, may help mitigate misunderstandings. Although it cannot erase the absence, it can at least formally terminate the relationship on record and possibly preserve the employee’s ability to secure a certificate of employment.
6. Practical Steps for the Employee Wishing to Resign After Prolonged Absence
6.1. Draft a Formal Resignation Letter – The employee should prepare a clear and concise resignation letter explaining, as simply and professionally as possible, the reasons for not reporting to work. While not legally required, a brief explanation (without overly detailed personal circumstances) can help maintain goodwill. The resignation letter should indicate the effective date of resignation and offer the standard 30-day notice, if feasible. Given the two-year absence, a 30-day notice period might be moot, but the formality matters.
6.2. Submit the Resignation Letter to the Employer – It is best to deliver the resignation letter either personally or through registered mail with return receipt requested, or via a method of communication the employer acknowledges (such as a company email address). This ensures there is a record that the resignation was formally submitted.
6.3. Request for Clearance and Final Pay Computation – Along with the resignation letter, the employee may request the computation and release of any pending salaries, 13th month pay, or other benefits. If the employee had any company property, keys, uniforms, equipment, or documents, these should be returned promptly to facilitate the clearance process.
6.4. Follow Up with the Employer and Document All Actions – The employee should keep a paper trail of all communications and follow-ups regarding the resignation. This documentation can serve as evidence of the employee’s good faith attempts to settle matters amicably if disputes arise in the future.
7. Employer’s Response and Potential Complications
7.1. Employer’s Recognition of Past Absences – The employer may respond by stating that the employee was already considered separated from employment due to job abandonment. In such a case, the employee can still clarify that, while absent, she now seeks a formal resolution of any outstanding employment issues, and that she wishes to ensure that her records are in order. Even if the employer deems the employee separated, acknowledging the current resignation request may still be beneficial for both parties.
7.2. Withholding of Final Pay – Philippine labor law discourages employers from withholding final pay and documents without valid reasons. If the employer refuses to issue final pay or a certificate of employment, the employee may consider seeking assistance from the DOLE or filing a complaint at the National Labor Relations Commission (NLRC).
7.3. Legal Redress if Necessary – If disputes arise—such as the employer refusing to provide final pay or issue a certificate of employment—the employee may seek conciliation or mediation through the Single Entry Approach (SEnA) at the DOLE, or file a labor case if necessary. However, such measures should be considered as a last resort, after all amicable efforts have been exhausted.
8. Potential Effects on Future Employment
Formalizing the resignation, even after an extended absence, can help ensure that the employee’s work record with the previous employer is as accurate and fair as possible. While the prolonged absence may create negative impressions in future background checks, having a documented resignation and a final settlement of obligations can help demonstrate that the employee took the initiative to close any loose ends professionally.
9. Prescriptive Periods and Legal Actions
It is worth noting that certain labor claims and actions are subject to prescriptive periods. While there is no strict prescription for simply resigning, issues related to monetary claims (e.g., unpaid wages, benefits) must generally be asserted within a certain timeframe—often three years from the date the cause of action accrued. The employee’s two-year absence does not automatically prevent her from resigning now, but it may affect the scope of what benefits remain collectible or enforceable.
10. Good Faith and Fair Dealing
Philippine labor law is rooted in the principle of social justice and seeks to protect the rights of workers while balancing the legitimate interests of employers. Even in unusual situations where the employee has been away for a long time, acting in good faith, being transparent, and adhering to procedural formalities like submitting a proper resignation letter can help establish a fair resolution. Employers, too, are expected to act in good faith—conducting the clearance process fairly, providing the final pay, and issuing employment certificates as required.
11. Special Considerations for Re-employment
If the employee, after resignation, considers returning to the labor market, having a formal resignation on record with the former employer closes a chapter neatly and professionally. This can be beneficial when the employee seeks references or at least a certificate of employment that states the position held and the duration of employment, albeit with a significant gap in attendance. Legally and practically, it is better to leave one’s previous employment with proper documentation rather than leaving it in a state of ambiguity.
12. Conclusion
In conclusion, while an employee’s prolonged absence from work—especially following childbirth and the expiration of maternity leave benefits—may create a complicated scenario, it is still possible and lawful to submit a formal resignation at this later stage. Although the employer may have considered the employee separated due to abandonment, providing a resignation letter and seeking to settle any outstanding matters is a prudent step.
Under Philippine law, the employee retains the right to resign at any time. While the protracted absence may complicate matters, it does not invalidate the employee’s right to resign. The primary legal steps include drafting a clear resignation letter, delivering it to the employer, requesting clearance and final pay, and following up to ensure proper documentation. If disputes arise, the employee can resort to DOLE mechanisms or the NLRC for mediation or adjudication.
By understanding the legal framework governing resignations, abandonment, and final pay in the Philippines, both employees and employers can strive toward an equitable and lawful resolution—even under challenging circumstances. It is always advisable for the employee to consult with a lawyer or seek guidance from the DOLE for case-specific advice, ensuring that her rights are protected, and obligations fulfilled, as she moves forward.