Illegal termination

Dear Atty. Maan,

I have just given birth and am currently on maternity leave since the middle of July. Yesterday, I received a notice that I am being let go by the company, allegedly due to my performance, but I suspect it is because I will be on leave for a few months. Can they legally terminate me while I am on maternity leave?

Elaine

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Dear Elaine,

Maternity leave is a protected right under the law, specifically provided for in Republic Act 11210, also known as the “105-Day Expanded Maternity Leave Law” which provides:

Section 3. Grant of Maternity Leave.— All covered female workers in government and the private sector, including those in the informal economy, regardless of civil status or the legitimacy of her child, shall be granted 105 days maternity leave with full pay and an option to extend for an additional 30 days without pay: Provided, That in case the worker qualifies as a solo parent under Republic Act 8972, or the “Solo Parents’ Welfare Act”, the worker shall be granted an additional 15 days maternity leave with full pay.” xxx

The above law applies to all female employees, regardless of their civil status or the legitimacy of their child. Moreover, the law explicitly provides that an employee on maternity leave shall be assured of security of tenure. This means that her employment cannot be terminated on the grounds of her pregnancy or absence due to maternity leave. Section 15 of the same law provides:

Section 15. Security of Tenure. — Those who avail of the benefits of this Act, whether in the government service or private sector, shall be assured of security of tenure. As such, the exercise of this option by them shall not be used as basis for demotion in employment or termination. The transfer to a parallel position or reassignment from one organizational unit to another in the same agency or private enterprise shall be allowed: Provided, that it shall not involve a reduction in rank, status, salary, or otherwise amount to constructive dismissal.

From the foregoing, terminating the contract of an employee based on her pregnancy or maternity leave status can be deemed discriminatory and illegal. This would violate the rights protected under RA 11210 and the Labor Code unless it falls under the exemptions provided by the said law.

I hope this helps.

Atty. Mary Antonnette Baudi