The resignation in labor matters is one of the modalities of the termination of the employment relationship, it is a very important institution within the labor law, although our Labor Code in Honduras practically does not mention it (except by analogy in its articles 117 and 122), being such an interesting subject both for the worker, since resigning is a right that assists him/her, and for the companies, which many times do not know how to deal with this specific situation.
First of all, let us look at what is established in Article 117 of the Labor Code, which is so sparing: "The party that unilaterally terminates the employment contract must give the notice in writing, personally to the other party, but if the contract is verbal it may give it orally before two witnesses, with an expression of the cause or motive that moves it to make that determination. Afterwards, he may not validly allege different causes or motives".
This article establishes that the employee's resignation must comply with the following requirements:
- It is a unilateral act. The worker does not need prior or subsequent approval, it is an act that arises from his mere will.
- If the employment contract is in writing (which is the generality) the resignation must be given in writing. The only exception (not to present the resignation in writing) that accepts verbally and witnesses, is the verbal labor contract. In other legislations, handwritten resignations are not accepted, but in Honduras they are completely valid, and why not to say it, recommended. It would be very complicated to demonstrate later that a handwritten resignation is not the product of the will of an employee.
- The waiver must be personally delivered to the employer. In recent years the use of electronic methods, especially after the pandemic, has allowed communications to and from workers by other methods, such as e-mails and text messages. However, it is my opinion that the use of text messages to submit a resignation, with the serious consequences it may have for both the company and the worker, should at least be sent from an e-mail assigned to the worker by the company (which is not commonly used) or personally so that it is indubitable.
- It must express the cause or motive that moves the employee to make that determination. Normally the employee does not make use of this right, and only explains if they are personal, family, professional, etc. motivations. The implication of not putting this cause in the resignation note is minimal for the employee.
- The worker must set a date for leaving his job, either immediately (with the economic consequences that this implies) or a date no longer than two months, depending on whether his seniority is equal to or greater than two years. Normally a worker who resigns does not want to wait all that time (up to two months) and prefers to pay a penalty as established in Article 122 of the Labor Code, up to one month's salary.
What happens once the employee resigns?
The resignation, once formally submitted, is valid, whether or not it is accepted by the employer. However, it is recommended that once the employee has submitted his or her resignation, the company should :
- Accept the resignation immediately, if it is in your interest that the employee does not continue in the company. It is important to point out that once the employee has thought about resigning and does so, he/she has already lost his/her "animus". "animus" or motivation to do something. It is very likely that the employee's contributions to the company during this "notice" period will be minimal.
- Accept the resignation in writing, and validate the date that the employee has set as departure date. If it was by mail, answer the receipt of the resignation, and accept it in the same mail. If it is presented in writing, deliver a copy of this received in its place and date, and signature of who receives and put the word "accepted on its date" or a similar legend that prevents the worker later, pretending to retract it.
- At the time of termination of the employment relationship, on the date indicated, the employee must be paid the proportions of his "unwaivable" rights. It is a paradox, because only the employee can exercise the waiver, but there are rights that cannot be waived (thirteenth and fourteenth months of salary, plus vacations, all in proportion to the last date they were received or enjoyed).
The resignation of a worker in labor matters, once presented according to the characteristics set forth above, has full validity and a presumption of legitimacy, and the worker who wishes to subsequently disavow it, will have the burden of proof that the same has been made through one of the vices of consent: error, violence, intimidation or fraud. It is one of the few cases where the employee does not have the presumption in his favor, but has to prove that he was forced to prove the contrary.
Employees are advised to think seriously before submitting their resignation, as it is normally a decision that, once communicated to the employer, cannot be reversed, and to the employer, once a resignation is received, accept it immediately by a reliable means, to avoid that the employee later wants to ignore the resignation.
Marielena Ulloa de Pineda
Department of Labor and Employment
Ulloa and Associates
