The Community Quarantine has changed many things over the last few months in the workplace and throughout many industries in the Philippines. One of these is the number of people that have been retrenched or terminated, or even resigned, due to the COVID-19 pandemic.
The question today is whether a pregnant woman can be terminated. I recently saw this question asked, in the context of “would an employer be able to legally terminate a pregnant employee due for delivery within 6-8 weeks for a Just or Authorized Cause.” This actually pre-supposes that the pregnant woman in question is still working, and has not started her Maternity Leave yet.
In typical Filipino fashion, many of the responses were emotionally-based, and had no factual basis at all. “Go with your gut” or “do what helps you sleep at night” are not business-minded decisions, and will not help you to make the right decision. The right decision is not always the most humanitarian one.
Others quoted the law, saying that it was “illegal” and “unlawful”, with no real basis for that, other than the statement that quoted the actual law on the termination of a woman for the reason of being pregnant.
Prohibition of Terminating Pregnant Women
Article 135 (137) of the Labor Code has this to say about terminating pregnant women:
This makes many people think that you cannot terminate a pregnant woman for ANY reason. This is completely wrong. Logic dictates that, when utilizing Articles of the Labor Code, it should always be read and understood and interpreted in conjunction with any and ALL other Articles that may be relevant to the individual situation. This is why it is a lawyer that handles legal issues, not lay people. Because a lawyer is already trained to understand this.
Article 135 merely prohibits the termination of a pregnant woman for the reason of her pregnancy, or while she is already on Maternity Leave, or if she is confined due to complications in the pregnancy. It DOES NOT prohibit her termination for any OTHER reason. No single article in the Labor Code will negate another article, or cause another article to be less legally valid.
Termination for a Just Cause
Terminating a pregnant woman for a Just Cause under Article 297 (282) of the Labor Code is permitted, as long as due process is followed. If a pregnant woman commits an offense that is terminable under the company’s Code of Conduct or the Just Causes of the Labor Code, then said pregnant woman is no longer afforded the protection of Article 135.
The standard two-notice rule must still be applied, with the pregnant employee being issued with the Notice to Explain or Show Cause, allowing them five days to respond, and providing them with a written Notice of Decision.
If the pregnant employee went on Maternity Leave before the NTE could be issued, then you can simply wait until their return to work to issue, and follow due process from there. Since a pregnant woman cannot be terminated for ANY cause whilst on maternity leave, once she has returned to work, this protection no longer applies.
Termination for an Authorized Cause
The same justification applies to dismissing a pregnant employee for an authorized cause as for a just cause. As long as the requisite conditions are met, then the termination can be legal.
Under Article 298 (283) of the Labor Code, an employer can terminate the services of an employee due to retrenchment or redundancy. As long as the employee, and the DOLE, are given the requisite 30-day notice for retrenchment or redundancy, then their dismissal can include a pregnant woman.
As long as you follow due process, provide the required separation pay, and follow the Labor Advisories on issuance of final pay and CoE, then the dismissal will be legal. Again, the pregnant woman is afforded no more protection from retrenchment and redundancy than any other employee simply because of her pregnancy.
Disease as Ground for Termination
While this article is also valid for the dismissal of a pregnant employee, pregnancy is not yet classed as a disease, so cannot be used as the grounds for dismissal under Article 299 (284).
However, if the pregnant woman is found to be carrying a disease that is covered under this article, then it is legal for the company to terminate, provided that the correct Due Process is followed, including providing separation pay.
Resignation by the Pregnant Employee
While it is highly unlikely that a pregnant woman almost ready to begin her PAID maternity leave will resign, it is at least “possible”. Though I can see no reason why one would.
Under Article 300 (285) of the Labor Code, an employee may terminate their employment with a 30-day notice period, which the employer is at liberty to waive, if they see fit. The pregnant employee also has the right to resign without notice if they resign for one of the authorized causes under Article 300.
It is possible that an employee will resign for serious insult or unbearable treatment from the employer, and employers should ensure that they afford all the dignity and respect to their pregnant employees as to their non-pregnant employees. Pregnant employees are the largest number of complainants for this in the NLRC and DOLE complaints process, and have been found to invariably win when the employer has mistreated them or handled the situation badly. This has often included reducing or denying benefits for the pregnant employee.
Can a Pregnant Employee be put on Temporary Suspension?
The simple answer to this is yes, they can. The reasoning behind this is that, while they may be pregnant, they are not yet on Maternity Leave, which is the only time they cannot be given temporary suspension, temporary retrenchment, or temporary layoff.
The bona fide suspension of business, as has been seen all over the country during this COVID-19 pandemic, is still valid for pregnant employees, as long s their Maternity Leave has not yet started. However, this does not prevent them from taking their Maternity Leave, and the normal rules for Ml will apply here. Despite being on a “floating” status, the pregnant employee will begin their ML as previously agreed, and receive all the benefits therefrom, regardless of the suspension of business operations.
While a pregnant woman may be afforded many benefits due to their “condition”, they are not automatically immune from termination because of their pregnancy. In fact, the only protection they have is the protection from being terminated BECAUSE they are pregnant. If there are other legal reasons for terminating a pregnant employee, then the employer is well within his legal rights to do so.