Terminating a Pregnant Probationary Employee “Without Notice” for Lateness and Absences (Philippines)

Short answer: You cannot lawfully dismiss a pregnant probationary employee “without notice” for lates/absences. You may terminate only if (a) there are valid grounds (e.g., just cause or failure to meet reasonable, pre-communicated standards), and (b) you observe procedural due process (written notices and a real chance to be heard). Pregnancy may never be the reason—explicitly or implicitly—for dismissal.

1) Legal Framework at a Glance

Security of tenure applies to probationary employees. They may be terminated only for just causes, authorized causes, or failure to meet reasonable standards made known at engagement.
Pregnancy is a protected status. Dismissing a woman because she is pregnant—or while on, or due to, maternity leave—is unlawful. “No-pregnancy” or “no-marriage” policies are discriminatory.
Due process is mandatory. Even during probation, an employer must follow the two-notice rule (or a written notice of failure to qualify plus a fair chance to explain), and document everything.
“Without notice” is a red flag. Summary dismissal almost always results in illegal dismissal and possible damages—especially where pregnancy is involved.

2) Probationary Employment: What’s Special?

Maximum duration. Generally up to 6 months from start of work (longer only in specific, legally recognized arrangements like apprenticeship).
Standards must be pre-communicated. To end probation for “failure to qualify,” the employer must have reasonable standards (e.g., attendance, punctuality, output quality) clearly explained at hiring (offer letter, contract, handbook orientation, signed policy acknowledgment).
Grounds for termination during probation:
1. Just causes (e.g., serious misconduct; gross and habitual neglect—often where lateness/absenteeism is frequent and documented; fraud; etc.).
2. Failure to meet reasonable standards (e.g., an attendance KPI expressly stated at hiring).
3. Authorized causes (redundancy, retrenchment, closure)—rare in an attendance scenario and require separation pay and DOLE reporting.

3) Lateness & Absenteeism as Grounds

A) As a just cause: “Gross and habitual neglect of duties”

Habitual means repeated/frequent and typically despite prior warnings or counseling.
The conduct must prejudice the employer (e.g., missed shifts disrupt operations).
Evidence is key: timekeeping logs, daily time records, biometrics extracts, leave records, memos/NTEs, employee explanations, counseling notes.

B) As failure to meet standards (probationary non-qualification)

Works if your attendance standard is reasonable, quantified (e.g., “≤2 instances of unexcused tardiness per month”), and clearly communicated at hiring.
You still owe written notice explaining how the employee failed to qualify and a reasonable chance to comment before issuing a decision.

One-off or occasional tardiness rarely qualifies. The poorer your documentation, the higher the legal risk.

4) Pregnancy-Related Protections You Must Respect

No dismissal because of pregnancy. Any adverse action tied to pregnancy (explicitly or implicitly) is unlawful.
Maternity leave security. A woman may not be dismissed while on maternity leave, except for just cause entirely unrelated to pregnancy, with full due process.
Burden of proof is on the employer. Where the employee is pregnant, tribunals scrutinize motive. You must show the dismissal would have happened regardless of pregnancy and that you applied policies uniformly to others.

5) Procedural Due Process (Non-Negotiable)

For just cause (e.g., habitual tardiness/absence):

First written notice (NTE): State the acts (dates, times, policy provisions), possible sanction, and give time to submit a written explanation (typically at least 5 calendar days is considered reasonable).
Opportunity to be heard: Written explanation and/or conference where the employee can respond, with counsel/representative if requested.
Second written notice (Decision): Clear finding of facts and specific ground(s), and the penalty imposed.

For failure to meet probationary standards:

Give a written notice detailing the standards, how the employee failed to meet them (with data), and allow a meaningful chance to comment before issuing the decision. Many employers still mirror the two-notice approach for safety.

No shortcuts. “Immediate termination without notice” almost guarantees a procedural defect—making the dismissal illegal even if you had valid grounds.

6) Documentation Checklist (Employer’s Best Defense)

At hiring: Signed probationary contract; job description; attendance/punctuality policy; KPI sheet; employee handbook acknowledgment.
During employment: DTR/biometrics; leave forms; memos/NTEs; employee explanations; counseling/coaching records; performance reviews.
At termination: NTE with annexes; hearing minutes or proof of opportunity; decision notice; proof of service (personal receipt/signature or courier with tracking).

7) A Lawful Workflow (Step-by-Step)

Confirm pregnancy is irrelevant to the decision. Check you’ve applied the same standards to non-pregnant employees.
Audit the attendance record. Count unexcused lates/absences; separate excused (e.g., sickness with proof) from unexcused.
Match to policy/KPIs. Show that the figures breach a pre-communicated standard or qualify as gross and habitual neglect.
Issue NTE. Provide specifics (dates, times, minutes late, policy clauses) and give a reasonable response window.
Hold a hearing/meeting (if requested or prudent). Document it.
Evaluate fairly. Consider explanations (e.g., pregnancy-related medical appointments). Explore accommodations where reasonable (schedule adjustments, sick leave, SSS sickness benefits).
Decision notice. If grounds are established and dismissal is proportionate, issue a well-reasoned written decision. Otherwise, consider a final written warning or probation extension (only if lawful and agreed).
Post-decision compliance. Process final pay, COE, and statutory documents. If authorized cause (unlikely here), handle separation pay and DOLE notices.

8) “Without Notice” Risks & Penalties

Procedural due process violation → Nominal damages (even if cause is valid), and possible illegal dismissal if cause isn’t proven.
Substantive invalidity (no real cause, or cause tied to pregnancy) → Illegal dismissal → Reinstatement (or separation pay in lieu) plus full backwages; possible moral and exemplary damages and attorney’s fees.
Pregnancy discrimination findings can aggravate damages and reputational harm.

9) Common Pitfalls

Relying on verbal policies or rules not shown at hiring.
Counting excused absences (e.g., prenatal check-ups) as infractions.
Skipping the opportunity to explain or rushing timelines.
Using different yardsticks for different people (selective enforcement).
Termination during maternity leave for performance grounds that predate the leave (very high-risk).
Labeling the decision as purely “attendance,” but emails or chat messages reveal pregnancy was the real driver.

10) Practical Employer Tips

Quantify attendance KPIs in the probationary contract (e.g., “No more than 2 unexcused tardiness incidents per rolling 30 days”).
Track in real time and counsel early (progressive discipline).
Accommodate reasonable pregnancy-related needs (doctor visits, temporary adjustments).
Keep tone neutral in notices; stick to facts and dates.
Train supervisors not to mention pregnancy when discussing discipline.

11) Practical Employee Tips

Keep records of prenatal appointments and submit proof.
Acknowledge and respond to NTEs; propose workable accommodations.
If you suspect discrimination, preserve evidence (memos, chats) and seek advice promptly.

12) Remedies & Processes if Things Go Wrong

Single-Entry Approach (SENA) at DOLE for early, low-cost conciliation.
Labor Arbiter complaint for illegal dismissal, damages, and monetary claims.
Immediate reliefs may include reinstatement orders; backwages accrue until reinstatement or finality of judgment (subject to nuances for probationary status).

13) FAQs

Q: Can we end probation “without notice” on the last day because of lates? A: No. Provide written notice and a real chance to respond. For failure to qualify, the standards must have been pre-communicated; for just cause, follow the two-notice rule.

Q: Are we obliged to pay separation pay if we dismiss for lates/absences? A: Not for just causes or failure to qualify. Separation pay is for authorized causes (different grounds).

Q: What if the employee says the absences were pregnancy-related? A: Evaluate documentation (medical certificates, appointment slips). Reasonable accommodations are expected; penalizing legitimate pregnancy-related absences can be discriminatory.

Q: Can we downgrade to a lesser penalty? A: Yes—e.g., final written warning—if facts don’t meet “gross and habitual” neglect or the standards weren’t clearly pre-communicated.

14) Sample, Employer-Safe Language (Adapt as Needed)

At Hiring (probationary contract or annex): “Your probationary employment is for six (6) months starting [date]. To qualify for regularization, you must meet the following standards, among others: Attendance & Punctuality: No more than 2 unexcused tardiness incidents or 1 unexcused absence in any rolling 30-day period; timely clock-in per shift schedule; compliance with leave procedures. These standards were discussed during onboarding and accepted upon signing.”

Notice to Explain (excerpt): “Records show you incurred 5 unexcused tardiness incidents on [list dates/times] and 2 unexcused absences on [dates], contrary to Section [x] of the Handbook and your probationary KPI. Please submit a written explanation within 5 calendar days from receipt. You may attach any supporting documents and request a meeting.”

Decision Notice (excerpt): “After considering your explanation dated [date] and the hearing on [date], we find substantial evidence of habitual violations of the attendance standard. These infractions are unrelated to your pregnancy and would result in the same decision for any employee. Accordingly, your probationary employment is terminated effective [date] for [just cause / failure to meet standards].”

15) Key Takeaways

Do not terminate “without notice.”
Do ground your decision in documented, pre-communicated standards or a well-supported just cause.
Do provide written notices and a real opportunity to be heard.
Never allow pregnancy to factor into the decision—in fact or appearance.

This article provides general information on Philippine labor law. For a live matter, timelines, documents, and facts are everything—get tailored legal advice before acting.