In the Philippine employment landscape, the intersection of disciplinary proceedings and an employee’s right to resign often creates a complex legal tug-of-war. When an employee is placed under preventive suspension for alleged pilferage (theft of company property), the question arises: Can the employee simply walk away, and what happens if they do?
1. The Nature of Preventive Suspension
Preventive suspension is not a penalty. It is a remedial measure used by an employer during an investigation to protect company property or prevent the employee from influencing witnesses.
- Duration: Under the Labor Code, it should not exceed 30 days.
- Compensation: Generally, preventive suspension is unpaid. However, if the employer extends it beyond 30 days, they must begin paying the employee’s wages if they are not reinstated.
2. The Right to Resign vs. The Right to Discipline
The Philippine Constitution prohibits involuntary servitude. Consequently, an employee has the right to resign at any time, even while under investigation for pilferage.
- The 30-Day Notice Rule: Article 300 (formerly 285) of the Labor Code requires an employee to provide a written 30-day notice before the effective date of resignation.
- Employer Acceptance: While an employer cannot "reject" a resignation to force someone to work, they can refuse to waive the 30-day notice period.
3. Does Resignation Render the Case "Moot"?
A common misconception is that resigning automatically wipes the slate clean. This is false.
- Administrative Record: The employer may continue the administrative investigation despite the resignation. The final decision can be recorded as "Dismissal for Cause" even if the employee has left, which serves as a record for future background checks.
- Clearance and Benefits: Resignation does not exempt an employee from the "clearance" process. If the pilferage is proven, the employer may withhold the employee's final pay or benefits to the extent of the value of the stolen goods, following the principle of set-off or legal compensation, provided due process is observed.
4. Financial Implications
The financial fallout of resigning during a pilferage investigation depends on the outcome of the "due process" (Notice to Explain and Administrative Hearing).
| Item | Effect of Resignation |
|---|---|
| Separation Pay | Generally not entitled to separation pay if the resignation is voluntary or if the act (pilferage) constitutes serious misconduct. |
| Final Pay | Includes pro-rated 13th-month pay and earned salary. However, the employer may hold this pending the completion of the clearance process regarding the missing property. |
| Backwages | If the preventive suspension was found to be illegal (e.g., lasting 60 days without pay), the employee may still claim backwages for the period exceeding the legal limit. |
5. Criminal and Civil Liability
Resignation is an end to the employer-employee relationship, but it is not an end to legal accountability.
- Criminal Prosecution: The employer maintains the right to file a criminal complaint for Qualified Theft or Estafa before the Prosecutor’s Office regardless of the resignation.
- Civil Action: The employer may sue for damages in regular courts to recover the value of the pilfered items.
6. Constructive Dismissal Claims
If an employee resigns because the preventive suspension was used as a tool of harassment or was indefinitely extended without basis, they may claim Constructive Dismissal. In such cases, the burden of proof shifts to the employer to prove that the suspension and investigation were bona fide and followed the "Two-Notice Rule."
Key Takeaways
- Resignation is a right: You cannot be forced to stay, but you must generally honor the 30-day notice unless the employer waives it.
- Due process continues: The investigation into pilferage can proceed to its conclusion to determine the employee's status and liabilities.
- No "Get Out of Jail Free" card: Resigning does not bar the employer from filing criminal charges or withholding amounts from final pay to cover proven losses.