I. Executive Summary

In Philippine labor law, an employee who resigns must generally give the employer at least thirty (30) days’ prior written notice so the employer can ensure a proper turnover. Days spent on suspension—whether preventive (investigatory) or disciplinary—still count toward this 30-day notice, because the employment relationship continues during suspension and the statute measures time, not work rendered. The employer may, however, waive the balance of the notice period (“immediate release,” “garden leave”), or claim damages if the employee walks out without notice and no waiver is given. This article explains the legal bases, distinctions among types of suspension, effects on final pay and clearance, and practical treatment in edge cases (probationary, fixed-term, seafarers, kasambahay, government service, and CBA settings).

II. Legal Bases and Concepts

Resignation with Notice The Labor Code (Art. 300, formerly 285) recognizes voluntary resignation. For resignations without just cause, the employee must give the employer written notice at least 30 days in advance. The rule protects the employer’s operational continuity; it does not require that the employee work every one of those days. The notice is a time requirement, not a hours-worked requirement.
Employer Waiver / Early Release The employer may release the employee earlier than the effectivity date stated in the resignation (full or partial waiver of the 30-day period). When waived, the employment ends on the agreed earlier date. In practice, many employers place the employee on garden leave (paid/non-working status) for some or all of the remaining notice.
Resignation With Just Cause (No 30-Day Notice Required) The Code lists just causes (e.g., serious insult, inhuman treatment, commission of a crime by the employer, other analogous causes). If properly invoked and substantiated, no 30-day notice is required. Suspension days are irrelevant because the resignation may take effect immediately.
Nature of Suspension Suspension does not sever the employment tie. The employee remains on the rolls, subject to company rules and lawful orders.
- Preventive Suspension (investigatory) is interim, imposed when the employee’s continued presence poses a serious and imminent threat to persons or property. It is limited to 30 days. If extended, the excess period must be paid; preventive suspension is not a penalty.
- Disciplinary Suspension is a penalty after due process for proven infraction; typically without pay for a definite number of days.

III. Core Rule: Do Suspension Days Count?

Yes. Whether the employee is on preventive suspension or disciplinary suspension, each calendar day of suspension counts toward the 30-day resignation notice, because:

The law requires notice “in advance” measured in time, not “rendered work days.”
The employment relationship persists during suspension.
The very purpose of notice—allowing the employer to plan—is satisfied even if the employee is off the premises (e.g., on leave, garden leave, or suspension).

Illustrations

Preventive Suspension Overlaps Notice Employee submits resignation effective 30 calendar days from today. Employer places employee on 10 days preventive suspension starting tomorrow. On the 30th day, resignation takes effect, unless the parties agree otherwise.
Disciplinary Suspension Before/After Notice An ongoing 5-day disciplinary suspension neither tolls nor extends the 30-day period. The clock keeps running from the date the resignation notice was served.

IV. Interaction With Employer Directives

Employer Requires Turnover Tasks The employer may require reasonable turnover activities (e.g., knowledge transfer, delivery of documents). If the employee is suspended and barred from reporting, the employer can:
- Waive in-person work but demand documentary turnover (soft copies, credentials), or
- Place the employee on garden leave until effectivity. In either case, the notice period continues to run.
Employee Refusal to Render Any Cooperation If the employer has not waived the 30-day notice and the employee abandons duties outright, the employer may pursue damages under the Labor Code for failure to give proper notice. In practice, this is handled through offsets/set-offs that are lawful and documented (e.g., property not returned), or via a civil claim if warranted. The validity of offsets is constrained by wage protection rules.
Unconsented Extension of Effectivity The employer cannot unilaterally extend the employment beyond the employee’s duly given effectivity date (absent a lawful basis such as restraining orders or a mutually agreed change). The remedy for an employer facing inadequate turnover is damages or set-off, not forced continuation of employment.

V. Pay, Benefits, and Final Pay

During Preventive Suspension
- First 30 days: commonly unpaid; if the employer extends beyond 30 days while the case remains unresolved, the extension must be paid.
- This pay rule is separate from the resignation clock, which keeps running.
During Disciplinary Suspension
- Generally without pay for the fixed period imposed after due process.
- Benefits that accrue monthly (e.g., HMO coverage) usually continue, subject to plan rules.
Final Pay Timing Final pay (backwages, prorated 13th month, unused leave convertible to cash, last salary, and authorized deductions) becomes due after separation on the effectivity date (or earlier if released). Any lawful offsets (e.g., unreturned property) must be specific, documented, and consistent with wage deduction rules.
Clearance Clearance is an internal prerequisite for releasing final pay and COE but does not delay the legal effect of resignation. Employers should process clearance in good faith even if the employee was suspended.

VI. Leaves, Absences, and Other Non-Working Days

Approved Leave (Sick/Vacation), Rest Days, Holidays: All are calendar days that count toward the 30-day notice.
AWOL During Notice: Absences do not stop the clock, but expose the employee to disciplinary action and potential damages if notice compliance or turnover is frustrated.
Garden Leave: Counts fully, since employment subsists.

VII. Special Employment Situations

Probationary Employees The 30-day statutory notice still applies to resignations without just cause unless a written policy more favorable to the employee shortens it and is validly communicated.
Fixed-Term Contracts If the term is about to expire, the employee may simply finish the term. If resigning earlier without just cause, the 30-day notice applies, and suspension days count. Contractual liquidated damages must be reasonable to be enforceable.
Project/Seasonal Employment If the project is ending, resignation may be moot. If resigning mid-project without just cause, the 30-day notice applies; suspension days count.
Seafarers and Overseas Employment Governed by standard POEA contracts and flag/state rules. Many require notice to the Master/agency rather than a straight “30-day” formula. In vessel settings, suspension (off-duty or off-signer status) does not stop the contractual notice clock unless the contract says so.
Kasambahay (Domestic Workers) The Kasambahay Law uses different notice periods and documentary requirements. Apply the statute/city ordinance and contract; suspension (rare in this sector) likewise does not toll notice unless a specific lawful provision states otherwise.
Government Service Civil Service rules, not the Labor Code, apply. Resignation is subject to acceptance by the appointing authority. Preventive suspension in administrative cases does not usually toll the period toward effectivity once acceptance is issued; check agency-specific issuances.
Collective Bargaining Agreements (CBA) and Company Policies CBAs/policies can shorten the notice (more favorable to employees) or clarify procedures. They cannot lengthen the statutory minimum to the employee’s prejudice. A CBA clause that explicitly tolls the notice during suspension would be suspect if it defeats the employee’s statutory right to resign on advance written notice.

VIII. Practical Guidance

For Employees

Serve the notice in writing (email + hard copy if possible) specifying a clear effectivity date.
If you are suspended, state that you will cooperate in turnover remotely and ask for instructions; offer return of assets via courier.
Keep proof of service and all correspondence.
If the employer asks for early release, get it in writing and clarify pay status (garden leave).
Avoid AWOL; it won’t stop the clock but can complicate final pay.

For Employers/HR

Acknowledge resignation and confirm the effectivity date.
If the employee is suspended, issue turnover directives compatible with the suspension (e.g., no site access; remote handover).
Decide promptly whether to waive any part of the 30 days; communicate garden leave status and pay.
Process clearance/final pay on or after separation; apply only lawful, documented offsets.

IX. Frequently Asked Questions

1) Can we “pause” the 30-day notice while the employee is suspended? No. Suspension does not terminate employment or toll statutory time.

2) Must the employee physically report during the notice despite suspension? No. Comply through alternative turnover arrangements. The employer may keep the employee offsite (garden leave).

3) What if an investigation is ongoing and we need the employee to remain? You cannot force the employee to extend beyond the notice effectivity. Preserve evidence, pursue administrative action while still employed, or pursue civil/criminal remedies afterward if warranted.

4) Can we withhold the Certificate of Employment (COE) if turnover is incomplete? COE issuance is a legal duty; withhold only items lawfully dependent on clearance (e.g., release of certain documents), not the COE itself.

5) If resignation is with just cause, do we still need 30 days? No. But the burden is on the employee to articulate and substantiate that just cause.

X. Model Clauses and Templates

A. Resignation With Standard Notice (Counting Suspensions)

Subject: Resignation with 30-Day Notice

Dear [HR/Manager],

I hereby resign effective at the close of business on [DATE], which is at least 30 calendar days from today. I will cooperate in turnover. If access to premises or systems is restricted due to suspension or other reasons, please provide alternative instructions for remote handover and asset return.

Sincerely,
[Name]

B. Employer Acknowledgment (Garden Leave / Waiver Option)

Subject: Acknowledgment of Resignation

Dear [Employee],

We acknowledge receipt of your resignation. Your last working day/effectivity of separation is [DATE].

[Choose one:]
• You are placed on garden leave from [DATE] to [DATE]. Please be available for remote turnover as needed.
• We waive the remaining notice. Your separation shall be effective on [EARLIER DATE].

Please complete clearance steps per the attached checklist.

Regards,
[HR]

XI. Bottom Line

The 30-day resignation notice is a calendar-time requirement.
Suspension—preventive or disciplinary—does not stop or reset that clock.
Employers may waive the period or keep the employee on garden leave; employees should cooperate with reasonable turnover.
Final pay and clearance follow separation, while any disputes over cooperation or property are addressed through lawful offsets or claims, not by extending employment past the effectivity date.