Introduction

In the Philippine labor landscape, resignation is a common occurrence as employees seek new opportunities or personal growth. However, the process is not as simple as submitting a letter and walking away immediately. The Labor Code of the Philippines (Presidential Decree No. 442, as amended) mandates a notice period for voluntary resignations to ensure a smooth transition for both the employer and the employee. A key question that arises is whether an employee can take absences during this notice period without repercussions. This article explores the legal framework, employee obligations, permissible and impermissible absences, potential consequences, and related considerations under Philippine law. It aims to provide a comprehensive understanding for employees, employers, and HR professionals navigating this aspect of employment termination.

Legal Basis for Resignation and Notice Period

The foundation for resignation in the Philippines is rooted in Article 300 of the Labor Code (formerly Article 285), which addresses termination of employment by the employee. An employee may terminate their employment without just cause by serving a written notice on the employer at least one month (30 days) in advance. This notice period is designed to allow the employer sufficient time to find a replacement, transfer knowledge, or complete pending tasks.

The 30-day period is the standard, but it can be modified by company policy, collective bargaining agreements (CBAs), or individual employment contracts, provided it does not violate the minimum requirements set by law. For instance, some contracts may stipulate a longer notice period for managerial or technical positions. Failure to provide the required notice can lead to liability for damages, as the Supreme Court has ruled in cases like Agabon v. NLRC (G.R. No. 158693, November 17, 2004), emphasizing the mutual obligations in employment relationships.

Importantly, during this notice period, the employment relationship remains intact. The employee is still bound by the terms of their contract, company rules, and labor laws. This means they are expected to continue performing their duties diligently, report to work regularly, and adhere to workplace policies.

Employee Obligations During the Notice Period

Once resignation is tendered and accepted (or even if not formally accepted, as resignation is a unilateral act), the employee must fulfill their role until the end of the notice period. This includes:

Regular Attendance: Employees are required to maintain their usual work schedule. The notice period is not a "vacation" or a time to disengage; it is part of the active employment term.
Performance of Duties: The employee must continue to meet productivity standards and complete assigned tasks. Slacking off or poor performance can be grounds for disciplinary action.
Compliance with Policies: All company rules on conduct, confidentiality, and non-compete clauses (if applicable) remain in force.

The rationale is to protect the employer's interests, ensuring business continuity. The Department of Labor and Employment (DOLE) guidelines reinforce this by stating that the notice period is compensatory time for the employer to mitigate losses from the employee's departure.

Permissible Absences During the Notice Period

Absences during the notice period are not outright prohibited, but they must be justified and authorized under labor laws or company policies. Philippine law recognizes several types of legitimate absences that an employee can avail of, even after tendering resignation:

Vacation Leave (Service Incentive Leave): Under Article 95 of the Labor Code, employees with at least one year of service are entitled to at least five days of paid service incentive leave (SIL). If unused, these can be taken during the notice period, provided the employee requests it in advance and it is approved. Some companies offer more generous vacation policies, which may also apply.
Sick Leave: If an employee falls ill, they can take sick leave, supported by a medical certificate if required by company policy. The Labor Code does not mandate paid sick leave for private sector employees unless provided in the CBA or contract, but many employers offer it as a benefit.
Maternity/Paternity Leave: Eligible employees can avail of maternity leave (105 days for normal delivery under Republic Act No. 11210) or paternity leave (7 days under Republic Act No. 8187) if the qualifying event occurs during the notice period. These are protected by law and cannot be denied.
Emergency Leave or Special Leaves: Leaves for bereavement, calamity (under DOLE advisories during disasters), or other emergencies may be granted. Additionally, solo parents can claim leave under Republic Act No. 8972.
Authorized Time Off: With employer approval, employees might take unpaid leave or use compensatory time off for personal reasons, such as job interviews or relocation preparations.

To avail of these, employees must follow proper procedures, such as submitting leave forms and obtaining approvals. The key is that these absences are compensated or excused based on entitlement, and they do not automatically extend the notice period unless agreed upon.

Impermissible Absences and Consequences

Unauthorized absences, commonly referred to as Absence Without Official Leave (AWOL), are not permitted during the notice period. If an employee fails to report without valid reason, it can be construed as neglect of duty or abandonment, which are just causes for termination under Article 297 of the Labor Code (formerly Article 282).

Definition of AWOL: This occurs when an employee is absent without prior notice or approval, or fails to return after an approved leave. Even one day of unauthorized absence can trigger disciplinary measures, depending on company policy.
Consequences:
- Deduction from Pay: Absences are typically unpaid, and the employer can deduct the corresponding amount from the employee's final pay.
- Disciplinary Action: Progressive discipline may apply, starting with warnings, suspension, and potentially leading to dismissal for repeated offenses.
- Forfeiture of Benefits: Unauthorized absences might result in the loss of accrued benefits, such as unused leaves or separation pay (if applicable).
- Damages or Liability: If the absence causes significant harm to the employer (e.g., missed deadlines leading to financial loss), the employee could be held liable for damages, as seen in jurisprudence like Jo Cinema Corporation v. Abellana (G.R. No. 132837, June 28, 2001).
- Immediate Termination: In severe cases, the employer may consider the resignation "ineffective" due to abandonment and terminate the employee for cause, which could affect clearances and future employment references.

The Supreme Court has consistently held that while employees have the right to resign, they must do so responsibly. In University of Santo Tomas v. NLRC (G.R. No. 89920, October 18, 1990), the Court emphasized that the notice period is mandatory to prevent undue prejudice to the employer.

Employer Rights and Responsibilities

Employers have the right to enforce attendance during the notice period but must do so fairly:

Acceptance of Resignation: Employers cannot force an employee to withdraw resignation but can negotiate a shorter or longer period.
Garden Leave: Some companies place resigning employees on "garden leave," where they are paid but not required to work, often to protect sensitive information. This is permissible if stipulated in the contract.
Due Process: If disciplining for absences, employers must follow due process under DOLE Department Order No. 147-15, including notice and hearing.
Final Pay and Clearance: Employers must release final pay, including prorated 13th-month pay, unused leaves, and other benefits, within 30 days of the last day, minus any deductions for absences or damages.

Employers cannot arbitrarily deny legitimate leave requests during this period, as this could constitute constructive dismissal or violate labor standards.

Employee Rights and Protections

Employees are not without protections:

Right to Resign: Resignation is voluntary and cannot be coerced. Forced absences (e.g., employer sending the employee home) do not count against the employee.
Non-Diminution of Benefits: Entitled leaves cannot be forfeited simply because of resignation.
Labor Dispute Resolution: If disputes arise over absences, employees can file complaints with the DOLE or the National Labor Relations Commission (NLRC) for issues like illegal deduction or wrongful termination.

In cases involving health or family emergencies, courts tend to be lenient, prioritizing employee welfare as per the social justice principle in the Constitution.

Special Considerations

Probationary Employees: They may have shorter notice periods or none, depending on the contract, but absences still require justification.
Managerial Employees: Higher standards apply, and absences might have greater impact due to their roles.
Impact of COVID-19 and Similar Events: During pandemics, DOLE issuances (e.g., Labor Advisory No. 17-20) allowed flexible work arrangements, including excused absences for health reasons, which could extend to notice periods.
Overseas Filipino Workers (OFWs): Governed by POEA rules, which may require similar notice but with additional repatriation considerations.

Conclusion

In summary, employees in the Philippines can be absent during the resignation notice period only if such absences are permissible under law or policy, such as paid leaves or emergencies. Unauthorized absences risk severe consequences, including pay deductions, disciplinary action, or even termination for cause. Both parties must act in good faith to uphold the employment contract's spirit. Understanding these nuances helps prevent disputes and ensures a professional exit. For specific cases, consulting a labor lawyer or the DOLE is advisable to tailor advice to individual circumstances.