Guess who has the burden of proof that an employee voluntarily resigned from the company?

Employers and human resource professionals keep thinking that this will not happen to their companies – until it actually does occur. When it does, they find themselves stressed out how they can resolve such a serious issue.

Why is it serious? Because forced resignation is an illegal dismissal case. 

An illegal dismissal will entitle the employee to full backwages (which runs like a taxi meter), reinstatement, separation pay (if reinstatement is not possible due to strained relations), moral damages, exemplary damages, nominal damages, attorney’s fees, and may result in officers being solidarily or personally liable.

Let’s go back to the question above. Who has the burden of proof?

The case of Penaflor v. Outdoor (G.R. No. 177114, 13 April 2010) stated: “The fact of filing a resignation letter alone does not shift the burden of proving that the employee’s dismissal was for a just and valid cause from the employer to the employee.”

What then should Human Resource do considering that employees do tender resignation letter when they decide to leave the company? If they claim later on that they were forced to resign, what else could the Management rely on if the resignation letter is insufficient?

The solution: notarized resignation letter.

Due to the increase of cases on forced resignation (it’s quite convenient and easy for employees to lie), and handling some of these now, the best way for an employer to defend itself from a forced resignation case is to require resigning employees to submit a notarized resignation letter.

Whenever I recommend these to client and HR practitioners, I get quizzical looks. Yes, I know it is unconventional (and some have not heard of it before). But, that is precisely the solution.

If a resignation letter is notarized, the employee is presumed to have went to a Notary Public who confirmed the voluntariness in signing the document. There’s your evidence for willingness in the execution of the resignation letter – and the strongest defense against a false claim on being forced.

Next, the Management can take legal action against the employee – particularly for a criminal case against perjury having subscribed and sworn to a notary public.

In the exercise of Management Prerogative, the employer can require submission of a notarized resignation letter prior to it being accepted.

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