What happens with a resigning probationary employee? Are they exempted from the 30-day notice rule because they haven't reached regular status yet? If they cannot comply with a 30-day notice, can they request for a shorter period ? We tackle all of these questions in today's article.
I received a letter recently which goes:
Hi Atty, I am currently working in company for almost 2 months and I am under probationary status. I asked my employer if I can resign effective this week, but he rejected it because in the contract I signed, there must be a 30-day notice before the effectivity of resignation. Am I not allowed to request for earlier resignation? Should I follow the 30-day notice even if I am under probationary employment?
What does the law say about resigning probies?
Let's start off with what the labor code says under Article 285:
“(a) An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. x x x”
I'd like to invite your attention to the wording used: "an employee". There doesn't seem to be any distinction made on what kind of employee is covered. Is this limited to regular employees only or probationary employees?
The lack of specificity leads me to conclude that the law intends to cover all kinds of employees, including probationary employees.
Since they are covered by the requirement, the answer to the question is that yes, probationary employees are supposed to render the 30-day notice when they resign. Otherwise, they risk being held liable for damages incurred by the employer.
It fits the bill
This makes sense to me because regardless whether the employee is regular or probationary, the employer would have to facilitate the turnover of pending work and find a replacement.
Makes no difference whether the employee has been regularized, there is the same effect on the employer. And therefore, the employer is entitled to the same courtesy either way. If you want to learn what the employer is expected to do during this period, read the article "Can Employees file for immediate resignation?"
I think it's fair for employers
Some food for thought. I think this is a fair thing for the probationary employee to do for the employer. Why?
Think back. Just a few months ago, the employee was a mere applicant. The employee presented themselves to the employer asking them to take a chance on them saying, "Please, you don't know me, but I think I'd be a good fit with your organization."
The employer took a chance on them. They risked their time and resources on someone untested. They gave the employee a chance. Now that the employee wants to leave, I think that the least he or she can do is to return that same courtesy. If the employee is really intent on leaving, they should at least allow the employer the opportunity to conduct a proper turnover and find a replacement. I feel that they are owed at least that much.
Next, the way an employee handles leaving work speaks to their professionalism. If they leave rudely, then that betrays their real work ethic. Feedback like that tends to linger, and it isn't a remote possibility that it can come back and bite them back down the road in some way.
I'm a big believer in karma, and in the work place, what goes around really tends to come around at some point. It is always better to leave things under good terms. Besides, it's basic human courtesy at play here.
Doesn't hurt to ask though
That being said, can the employee just sit down with the management and ask for an exception to the 30-day rule? Definitely yes. The law provided the 30-day period as a benefit that the employer can utilize for their benefit. If they choose not to use it, then it's all good.
All that the employee needs to do is to ask nicely. From my experience, if the employee has been professional in dealing with the employer, then most managers are willing to give way and concede the 30-day notice as a token of good will. However, the initiative should come from the employee because they are asking for a favor. They cannot demand this. See my other article titled "What if a probationary employee wants to resign" for more details.
Hope this helped!
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