Issuance of Notice to Explain for Employees on Maternity Leave

Issuance of Notice to Explain for Employees on Maternity Leave in the Philippines: A Comprehensive Guide

In the Philippines, the right to maternity leave is a fundamental protection granted to working mothers. With the passage of Republic Act (R.A.) No. 11210 or the 105-Day Expanded Maternity Leave Law, female employees are entitled to extended maternity benefits to support their well-being and that of their newborn child.

At times, however, issues of discipline or potential violations of company policy may arise during an employee’s maternity leave. In these situations, employers may consider issuing a Notice to Explain (NTE) as part of due process. The following discussion provides an overview of the legal framework, rights, responsibilities, and best practices regarding the issuance of an NTE to employees on maternity leave in the Philippine context.

1. Legal Framework Governing Maternity Leave and Employees’ Rights

  1. R.A. No. 11210 (105-Day Expanded Maternity Leave Law)

    • Grants 105 days of paid maternity leave to qualified female workers, with an option for an additional 30 days (unpaid) if required.
    • Covers all female workers in the public and private sectors, including those in the informal sector and members of the Social Security System (SSS).

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

    • Establishes fundamental rights of workers such as security of tenure, safe working conditions, and due process in disciplinary actions.

  3. Magna Carta of Women (R.A. No. 9710)

    • Emphasizes the protection of women against discrimination and underscores the importance of maternity-related benefits as a measure for women’s economic empowerment.

  4. Other Relevant Issuances and Jurisprudence

    • Department Order No. 147-15 (Series of 2015) of the Department of Labor and Employment (DOLE), which sets forth the rules on termination of employment and standards of due process.
    • Supreme Court decisions which consistently affirm the “twin notice rule” in disciplinary cases, requiring (a) a written notice (NTE) specifying the ground(s) for the proposed disciplinary action, and (b) a subsequent notice of decision after the employee is given the opportunity to be heard.

2. The Role of the Notice to Explain (NTE) in Due Process

A Notice to Explain is the first step in the “twin notice rule,” which is fundamental to due process under Philippine labor law. An NTE:

  1. Informs the Employee of the Alleged Offense or Violation

    • Details the facts or circumstances constituting the suspected infraction (e.g., violation of company rules, misconduct, fraud, etc.).
    • Serves as the first written notice, ensuring the employee is fully aware of the issues raised against them.

  2. Requires the Employee to Provide an Explanation

    • Gives the employee a reasonable opportunity to present their side or defenses, usually in writing or, if necessary, in a hearing.
    • Typically includes a time period within which the employee must submit a written explanation (commonly 5 calendar days or a timeframe stated in the company policy).

  3. Precedes Any Disciplinary Decision

    • The employer cannot validly impose disciplinary penalties—especially dismissal—without first issuing an NTE and giving the employee a chance to respond, unless there are extreme exceptions (e.g., abandonment, where the employee could not be located).

3. Special Considerations When Issuing NTE to an Employee on Maternity Leave

Because maternity leave is a legally protected period, employers must carefully navigate any disciplinary process to avoid violating the employee’s rights. Below are key considerations:

  1. Legality of Serving an NTE During Maternity Leave

    • No explicit prohibition: Philippine labor laws and regulations do not expressly prohibit serving an NTE to an employee on maternity leave. If there is a legitimate disciplinary issue, the employer retains the right to commence due process.
    • Potential risk of discrimination claim: If the basis for disciplinary action is directly related to pregnancy or used to harass the employee during her leave, this may constitute discrimination under the Magna Carta of Women. Employers must ensure that there is a bona fide cause for the NTE.

  2. Right to Continue Receiving Maternity Benefits

    • Regardless of the disciplinary process, the employee’s maternity benefits cannot be denied if she meets the eligibility requirements (i.e., correct number of SSS contributions, compliance with documentary requirements, etc.).
    • An employer’s decision to discipline or dismiss (if warranted) does not negate the employee’s entitlement to maternity leave benefits incurred before or up to the point a valid dismissal could be justified.

  3. Timing and Practicality

    • Employee’s Availability: An employee on maternity leave may not be immediately available to respond to an NTE, especially in the early weeks of recovery and neonatal care.
    • Best Practice: If possible, and if it does not prejudice the employer’s interests, employers often defer serving or requiring a response to an NTE until after the employee’s return. This approach reduces stress, shows respect for the maternity period, and helps ensure the employee can meaningfully exercise the right to due process.
    • Urgent Cases: In cases where a pressing disciplinary matter cannot be delayed (e.g., critical fraud or embezzlement), an employer may issue the NTE during the leave. The employee should be given a reasonable period to respond, acknowledging her condition and availability.

  4. Respecting Health and Well-Being

    • Maternity leave is intended for recovery from childbirth and care of the newborn. Employers should be mindful that undue pressure or invasive demands during this period might be construed as harassment or discrimination.

4. Procedural Steps and Best Practices

To ensure compliance with labor standards and protect both the employer and the employee, these best practices are recommended:

  1. Document Everything

    • Clearly document the alleged violations, evidence gathered, and the timeline of events leading to the issuance of the NTE.
    • Keep records of when and how the NTE was served (registered mail, email with acknowledgment, personal service).

  2. Issue the NTE in a Neutral Manner

    • Use respectful, factual, and clear language.
    • Avoid language that could be interpreted as harassment or as attributing fault simply because of the employee’s pregnancy or maternity leave.

  3. Provide a Reasonable Period to Respond

    • In normal circumstances, 5 calendar days to respond is standard, but given the employee’s condition (recovering from childbirth) or accessibility issues, a longer period may be warranted.
    • Communicate that the employee may request an extension if needed for health or personal reasons.

  4. Conduct a Fair Hearing (If Needed)

    • If a hearing is part of company policy, schedule it at a mutually convenient time, ideally once the employee is capable of participating fully.
    • Alternatively, allow a written explanation if a hearing would be overly burdensome to the employee during her maternity leave.

  5. Issue a Second Notice (Notice of Decision)

    • Once the employee has explained (or waived the right to explain by not responding within a reasonable period), the employer must issue a notice of decision clearly stating the findings and any disciplinary action.
    • Be cautious: If the employee is on maternity leave, any decision (especially termination) should be firmly grounded on just or authorized causes unrelated to the pregnancy.

  6. Consult with Legal Counsel

    • Particularly in complex cases or where termination might be considered, consult a labor lawyer to avoid liability for illegal dismissal or discrimination claims.

5. Potential Liabilities for Employers

  1. Illegal Dismissal

    • If an employee is terminated without compliance with the twin notice rule or if the real reason for dismissal is pregnancy or maternity leave, the employer could be liable for illegal dismissal.
    • Penalties often include reinstatement (or separation pay in lieu of reinstatement), full back wages, and benefits.

  2. Discrimination Claims

    • Under the Magna Carta of Women, discriminatory acts based on pregnancy can lead to additional liabilities, damages, and sanctions for the employer.

  3. Damages and Attorney’s Fees

    • Courts may award moral or exemplary damages if the employer is found to have acted in bad faith or with malice, including harassment or discrimination.

6. Frequently Asked Questions

  1. Q: Can an employer fire an employee while on maternity leave if there is a just cause?
    A: Yes, in theory, an employer may dismiss for a legitimate, proven just cause (e.g., serious misconduct) following due process. However, the burden on the employer is very high to prove that the cause is unrelated to the pregnancy and that the proper procedure was followed.

  2. Q: What if the employee does not respond to the NTE because she is still recovering from childbirth?
    A: The employer should consider extending the period for response and ensure that the employee is given ample opportunity to be heard. If, despite reasonable accommodation, the employee still does not respond, the employer may proceed ex parte (based on available evidence) but must do so with caution.

  3. Q: Does the employee lose maternity benefits if found guilty of a violation?
    A: Generally, no. Maternity benefits are based on the fact of childbirth and the SSS or GSIS contributions. Disciplinary action or even termination (if valid) does not negate the benefits earned prior to the dismissal.

  4. Q: Could serving an NTE during maternity leave be seen as harassment?
    A: It depends on the surrounding circumstances. If there is a genuine work-related cause and the NTE is served respectfully and procedurally, it is not harassment. But if the timing or manner of service suggests it is intended to pressure or retaliate against the employee for being on maternity leave, it could be deemed harassment or discrimination.

7. Conclusion

Issuing a Notice to Explain to an employee on maternity leave is not categorically prohibited under Philippine law. However, employers must exercise due diligence, caution, and sensitivity to ensure that the notice is based on a legitimate cause and that the disciplinary process respects both the employee’s right to due process and her protected maternity status.

Key points for employers include:

  • Ensuring the cause for disciplinary action is unrelated to pregnancy itself;
  • Respecting the employee’s physical and emotional state during childbirth and recovery;
  • Granting sufficient time and opportunity for the employee to respond; and
  • Maintaining meticulous documentation throughout the process.

By observing these practices, employers can maintain a fair and lawful approach while safeguarding the rights and welfare of their employees who are on maternity leave.

Disclaimer: This article is provided for general informational purposes only and does not constitute legal advice. For specific concerns or cases, it is best to consult with a qualified labor attorney or the Department of Labor and Employment (DOLE) for tailored guidance.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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