Terminating a Pregnant Employee for Lates and Absences Under Philippine Labor Law

Introduction

In the Philippines, labor laws provide robust protections for employees, particularly those who are pregnant, to ensure fairness, non-discrimination, and the promotion of maternal health. The topic of terminating a pregnant employee due to lates (tardiness) and absences raises critical questions about the intersection of employee discipline, just causes for termination, and anti-discrimination provisions. Philippine jurisprudence and statutes emphasize that pregnancy should not be a basis for adverse employment actions, but employers retain the right to enforce reasonable workplace rules. This article explores the legal framework, key principles, procedural requirements, potential liabilities, and practical considerations surrounding such terminations, drawing from the Labor Code, related laws, and relevant case law.

Relevant Legal Framework

The Labor Code of the Philippines (Presidential Decree No. 442, as amended)

The Labor Code serves as the foundational statute governing employer-employee relations. Under Article 282 (now Article 297 in the renumbered code), an employer may terminate an employee for just causes, which include:

Serious misconduct or willful disobedience of lawful orders.
Gross and habitual neglect of duties.
Fraud or willful breach of trust.
Commission of a crime against the employer or their family.
Analogous causes.

Habitual tardiness and absences can fall under "gross and habitual neglect of duties" if they demonstrate a pattern of negligence that impairs work performance or disrupts operations. However, this must be substantiated with evidence, such as attendance records, warnings, and proof of impact on the business.

Importantly, Article 137 (now Article 152) prohibits discrimination against women on account of marriage or pregnancy. It explicitly states that it shall be unlawful for an employer to:

Deny any woman employee the benefits provided by law.
Discharge such woman on account of her pregnancy, or while on leave or in confinement due to her pregnancy.
Discharge or refuse admission to such woman upon returning to work for fear that she may again be pregnant.

This provision underscores that pregnancy itself cannot be a ground for termination, and any disciplinary action must be unrelated to the employee's pregnant status.

Republic Act No. 11210: The 105-Day Expanded Maternity Leave Law

Enacted in 2019, this law expands maternity leave to 105 days with full pay for female workers in both public and private sectors, with an option for an additional 30 days without pay. Solo parents receive an extra 15 days. Key protections include:

Prohibition against termination or demotion due to pregnancy or availing of maternity leave.
Assurance of job security, with the employee entitled to return to the same or equivalent position upon completion of leave.
Coverage for miscarriages and emergency terminations, providing 60 days of paid leave.

If lates or absences stem from pregnancy-related conditions (e.g., morning sickness, medical check-ups, or complications), they may be excused under this law, especially if supported by medical certification. Employers must accommodate reasonable adjustments, such as flexible hours, to avoid constructive dismissal claims.

Other Pertinent Laws and Regulations

Magna Carta of Women (Republic Act No. 9710): This reinforces gender equality and prohibits discrimination based on sex, including pregnancy. It mandates comprehensive health services for women and protects against workplace biases.
Anti-Sexual Harassment Act (Republic Act No. 7877) and related DOLE issuances: While not directly on pregnancy, these highlight the broader context of protecting women from hostile work environments, which could indirectly relate if disciplinary actions are perceived as harassment.
Department of Labor and Employment (DOLE) Department Orders: DO No. 147-15 outlines rules on just and authorized causes for termination, emphasizing due process. Employers must issue notices to explain and allow the employee to respond before termination.

Key Principles in Termination Cases Involving Pregnant Employees

Distinguishing Between Pregnancy-Related and Non-Related Absences

The crux of the issue lies in causation. If lates and absences are directly attributable to pregnancy (e.g., prenatal visits, hyperemesis gravidarum, or bed rest orders), termination on these grounds is illegal and constitutes discrimination. Courts have ruled that such actions violate the constitutional right to equal protection and security of tenure (Article XIII, Section 3 of the 1987 Constitution).

Conversely, if the pattern of tardiness and absences predates the pregnancy or is unrelated (e.g., personal reasons, laziness), and the employer can prove habitual neglect without bias, termination may be upheld. However, the burden of proof rests on the employer to show:

The violations were gross and habitual.
Progressive discipline was applied (e.g., verbal warnings, written memos, suspensions).
No discriminatory motive existed.

Due Process Requirements

Under Article 292 (now Article 307) of the Labor Code, termination for just cause requires twin notices:

Notice to Explain (NTE): A written charge specifying the grounds and giving the employee at least five days to respond.
Notice of Termination: Issued after considering the employee's explanation, detailing the findings and decision.

Failure to observe due process renders the termination illegal, entitling the employee to reinstatement and backwages, even if a just cause exists. For pregnant employees, DOLE often scrutinizes these processes for signs of pretextual dismissal.

Constructive Dismissal

Even without formal termination, excessive monitoring, demotion, or creating an intolerable work environment due to pregnancy-related absences could amount to constructive dismissal. This is actionable under labor law, leading to claims for illegal dismissal.

Jurisprudence and Case Law Insights

Philippine Supreme Court decisions provide guidance:

Saudi Arabian Airlines v. Rebesencio (G.R. No. 198587, 2015): The Court invalidated the termination of flight attendants who became pregnant, ruling it discriminatory under the Labor Code and international conventions like CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), to which the Philippines is a signatory.
Lakpue Drug, Inc. v. Labasan (G.R. No. 195642, 2013): Emphasized that habitual absenteeism must be willful and without valid reason. If absences are justified (e.g., health-related), they cannot justify termination.
Del Monte Philippines, Inc. v. Velasco (G.R. No. 153477, 2007): The Court awarded damages to a pregnant employee dismissed for absences, finding that her medical conditions excused the lates.

These cases illustrate that courts favor employees in pregnancy-related disputes, often requiring employers to provide accommodations under the "reasonable adjustment" principle derived from disability and gender laws.

Employer Liabilities and Remedies for Employees

Consequences for Illegal Termination

If a termination is deemed illegal:

Reinstatement and Backwages: The employee is entitled to full backwages from dismissal until reinstatement, plus moral and exemplary damages if bad faith is proven.
Administrative Penalties: DOLE may impose fines or order compliance.
Criminal Liability: Under the Magna Carta of Women, discrimination can lead to imprisonment or fines.

Employees can file complaints with the National Labor Relations Commission (NLRC) for illegal dismissal, with appeals to the Court of Appeals and Supreme Court.

Preventive Measures for Employers

To mitigate risks:

Implement clear attendance policies with provisions for excused absences.
Document all incidents objectively.
Offer maternity support programs, such as telework or light duties.
Train HR on anti-discrimination laws.
Consult legal counsel before disciplinary actions involving protected classes.

Employee Rights and Options

Pregnant employees should:

Keep medical records and certifications for absences.
Respond promptly to NTEs with evidence.
Seek assistance from DOLE or unions.
Avail of maternity benefits without fear of reprisal.

Practical Considerations and Broader Implications

In practice, small and medium enterprises may struggle with balancing operational needs against legal protections, but compliance is non-negotiable. The COVID-19 pandemic highlighted flexible work arrangements, which can extend to pregnancy-related needs.

On a societal level, these laws promote gender equity, reduce maternal mortality by encouraging health-seeking behavior, and align with Sustainable Development Goals on decent work and gender equality.

In conclusion, terminating a pregnant employee for lates and absences is fraught with legal perils under Philippine law. While just causes exist, any hint of pregnancy-based discrimination invalidates the action. Employers must tread carefully, prioritizing due process and accommodations, while employees are empowered to assert their rights through established mechanisms. This framework not only safeguards individual welfare but also fosters a just workplace culture.