In the Philippine employment landscape, the Magna Carta for Women (Republic Act No. 9710) provides significant protection for female employees, specifically through the Special Leave Benefit (SLB). However, a common point of confusion for HR practitioners and business owners is whether an employee’s "protected status" while on leave shields them from disciplinary action for misconduct or performance issues.
The short answer is: Leave is not a cloak of immunity. However, executing disciplinary measures during this period requires a precise adherence to both substantive and procedural due process to avoid claims of discrimination or illegal dismissal.
1. The Statutory Basis of the Leave
Under Section 18 of RA 9710 and its Implementing Rules and Regulations (IRR), a female employee is entitled to a special leave benefit of up to two (2) months with full pay based on her gross monthly compensation following surgery caused by gynecological disorders.
- Eligibility: At least six (6) months of continuous aggregate employment service for the last twelve (12) months.
- Scope: Covers all female employees in the public and private sectors, regardless of age and civil status.
2. Can You Discipline an Employee on Leave?
Yes. The contract of employment is merely suspended regarding the performance of work during the leave period; it is not terminated. The employer’s management prerogative to instill discipline remains intact.
However, the discipline must be based on Just or Authorized Causes under the Labor Code (Articles 297-298) that are unrelated to the leave itself.
Valid Grounds for Action:
- Pre-existing Misconduct: If an investigation was already underway for an offense committed before the leave started.
- Discovery of Fraud: If, during the employee's absence, the employer discovers financial irregularities, theft, or serious misconduct previously hidden.
- Redundancy or Retrenchment: If the company undergoes a legitimate restructuring that affects the employee’s position, provided the selection criteria are fair and not based on her health condition.
3. The "Non-Discrimination" Constraint
The primary risk in disciplining an employee on Magna Carta leave is the allegation of Discrimination under Section 35 of the Act.
Crucial Rule: The disciplinary action must not be a "retaliation" for the employee taking the leave. If the termination or suspension is triggered by the fact that the employee is absent or because her surgery caused a temporary business disruption, the employer is in violation of the law.
4. Procedural Due Process During Leave
The "Two-Notice Rule" still applies. If an employer moves forward with disciplinary action while the employee is recovering, they must navigate the following:
| Step | Requirement | Challenge during Leave |
|---|---|---|
| Notice to Explain (NTE) | Detailing the charges and providing an opportunity to explain. | The employee may be physically unable to respond due to post-surgery recovery. |
| Administrative Hearing | A chance for the employee to defend herself. | Forcing an employee to attend a hearing while on medical leave may be viewed as "harassment" or "inhumane." |
| Notice of Decision | The final verdict on the case. | Must be served properly, usually via registered mail to the last known address. |
Best Practice: If the matter is not time-sensitive (e.g., it does not involve an ongoing threat to life or property), it is highly recommended to toll (pause) the disciplinary process until the employee is medically cleared to return. This demonstrates "good faith" and respects the employee's right to health.
5. Jurisprudential Context: The "Burden of Proof"
In the Philippines, the burden of proof in dismissal cases always rests on the employer. If an employee is dismissed while on Magna Carta leave, the employer must prove:
- The dismissal was for a just cause (e.g., Serious Misconduct, Willful Disobedience).
- The timing was incidental and not the cause of the dismissal.
- The employee was given a meaningful opportunity to be heard, considering her physical condition.
6. Risks of Improper Action
Failure to handle this intersection correctly can lead to:
- Illegal Dismissal: Resulting in backwages, reinstatement, and potentially moral and exemplary damages.
- Violation of RA 9710: Which carries its own set of administrative sanctions and potential liability for the individual officers involved.
- Labor Inspection Findings: Compliance audits by the Department of Labor and Employment (DOLE) often scrutinize the treatment of employees under special leave categories.
Summary for Employers
While the Magna Carta for Women protects a woman’s right to health and job security during recovery, it does not exempt her from the company's code of conduct. Discipline can be meted out, but the employer must be "surgical" in its approach—ensuring the cause is legitimate, the process is fair, and the action is entirely divorced from the employee’s exercise of her statutory leave rights.