Question

Dear HR Professionals,

If the pregnant staff is not performing up to standard (a review was done in her 2nd month of work) and now she is nearing the end of her 3rd month, can the employer terminate her without compensating maternity leave benefits? We tried calling MOM and was advised to pay the 16 weeks of Maternity Benefits even though she was only with us for close to 3 months.

Also to note, we hired her even though she communicated verbally to us that she is pregnant and we had no issues as it was solely based on performance in cases of termination.

Thank You.

CF

Reply 1

MOM has provided you the answers. In my view, do whatever you wish in relation to performance expectations, your obligation of the maternity benefits are still payable.

Henri

Reply 2

Dismissing an employee because of pregnancy is against the law. Furthermore, a pregnant employee has maternity protection if she has been at her job for at least 3 months. This means that if a pregnant employee is dismissed without sufficient cause, or is retrenched, the employer is still required to pay her maternity benefits.

Employers should treat pregnant employees fairly, and assess them on their merits and the requirements of the job. If a decision is taken to dismiss an employee, it must be based on relevant and objective performance criteria, and after a thorough inquiry. In your case employee been she was not up-to-par in work performance at 2nd month of employment. Hope it was documented and date set for next review before 3rd month of employment.

Rose

Reply 3

I am taken aback every time "terminating an employee" is used. I'd say 'terminating employment'. There have been instances when I encountered the phrase and endeavored to rectify it ...with good intent.

In the Philippines, the top HR person would usually handle cases of Suspension and Termination of Employment, whether in the absence or assistance of a Corporate Labor Lawyer.

From the onset of employment, we orient them on terms and conditions of work, including their KRAs and/or KPIs and when Performance Evaluation kicks in during employment. Assessment is accomplished by the Immediate Superior (and Next Higher Superior for some organizations for multiple evaluation processes) after the first, third and finally, the 5th month of work.

If and when the employee fails anytime during the segments, immediately we provide feedback and assistance on how to level up to bridge the gap between expected and actual performance. We mutually agree, in writing, on action plans due on certain timelines. Hence, if the employee still fails, he or she is given a good talk and a graceful exit.

May I also suggest that your employee's state of health or pregnancy be underplayed so as not to create any sense of discrimination, though you still hired her knowing she is "on the way'. She may find it difficult to work at this stage; thence, better to rest so as not to jeopardize the health of the baby. After all, it ought to be Family first!

Bobbie

Reply 4

Another main consideration beside the numbers of months she has served the company is how many months is she into her pregnancy. Separate sections of the employment act may apply.

However, if she is in her early stage of pregnancy and she has served the company for less then 3 months, she is not entitled to the maternity benefit. see the extract of the employment act below:-

Section 76 of Employment Act
(6) Where the employment of a female employee is terminated (whether by resignation or dismissal, upon the completion of her contract of service, or for any other reason) before she has exercised, wholly or partly, her entitlement to absent herself from work during a period referred to in subsection (1)(c)(ii), she shall forfeit that entitlement (or the balance thereof) upon the termination of her employment.

(2A) A female employee who delivers a child —
(a)on or after 1 May 2013 but before the date of commencement of section 5(c) of the Employment (Amendment) Act 2015; or

shall not be entitled to any pay during the benefit period if she has served her employer for less than 3 months immediately preceding the day of her confinement.

84.—(1) Without prejudice to sections 81 and 84A, no notice of dismissal given without sufficient cause by an employer to a female employee which —

(b)if given on or after 1st May 2013, is given at any time of her pregnancy (as certified by a medical practitioner before the notice of dismissal is given), where the female employee has served the employer for a period of 3 months or more immediately preceding the day the notice is given; or

shall have the effect of depriving her of any payment to which, but for that notice, she would have been entitled or would, on or before the date of her confinement, have become entitled to under this Part.

Dan

Reply 5

If she has not worked with the employer for 3 months, she is not entitled to maternity leave benefits. It is best, though, to confirm with MOM as this situation can be tricky and employer do not want to be seen to terminate a pregnant staff unfairly. You should also have evidence to prove that your employee has been informed of her under-performance during the review.

Per EA article 84A employee has right to benefit if notice :
(b) .... is given at any time of her pregnancy (as certified by a medical practitioner before the notice of dismissal is given), where the female employee has served the employer for a period of 3 months or more immediately preceding the day the notice is given;

However, I myself am unclear over when the employee has the right to the maternity leave benefit as it is supposed to given "... but for that notice, she would have been entitled or would, on or before the date of her confinement," In this case, the employee's confinement is still some 6 months down the road.

JS