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This article was originally published on February 20, 2019 and has been updated to reflect recent legal developments.

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of a lawyer or you may directly contact and consult Alburo Alburo and Associates Law Offices to address your specific legal concerns, if there is any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

AT A GLANCE:

What is suspension?

It is a disciplinary action resorted to by an employer by which an employee is prevented to go to work with an end that the erring employee may be reformed and to improve his work ethics.

Before a suspension against an employee begins, the latter should be given an opportunity to be heard. A Notice to Explain must be given to the employee apprising him of his infractions and that he has the opportunity to defend and explain his side through a reply on said Notice to Explain. The employee may opt to give his reply or not. Afterwards, the employer will then evaluate all the circumstances surrounding the misconduct and after which he will issue a Notice of Decision on whether or not to suspend said employee. Should the employer find that there is reasonable ground to suspend the employee, he may do so accordingly taking into consideration the limitations set by the law.

Suspension as Administrative Penalty

Suspension is considered as an administrative penalty when an employee commits several infractions of the company policies or code of conduct such as repeated absences, repeated tardiness or other similar acts. It may also be resorted to when an employee committed gross or habitual negligence of his/her work.

What is Preventive Suspension?

Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. (G.R. No. 146779, January 23, 2006)

Preventive Suspension Pending Investigation

Preventive suspension may be legally imposed against errant employee only when his alleged violation is the subject of an investigation and resorted to only while he is undergoing an investigation for certain serious offenses. Consequently, its purpose is to prevent him from causing harm or injury to the company as well as to his fellow employees. It is justified only in cases where the employee’s continued presence in the company premises during the investigation poses a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. Without this threat, preventive suspension is not proper (Maula v. Ximex Delivery Express, Inc., G.R. No. 207838, January 25, 2017).

If the basis of the preventive suspension is the employee’s absences and tardiness, the imposition of preventive suspension on him is not justified as his presence in the company premises does not pose any such serious or imminent threat to the life or property of the employer or of the employee’s co-workers simply “by incurring repeated absences and tardiness” (Valiao v Court of Appeals, G.R. No.146621, July 30,2004).

An employer may place an employee on preventive suspension if the employee has violated the company policies or code of conduct, the employer can suspend said employee while an investigation of the incident is being conducted. In the case of Mandapat v. Add Force Personnel Services, Inc., G.R. No. 180285, July 6, 2010, the Court ruled that:

“Preventive suspension may be legally imposed against an employee whose alleged violation is the subject of an investigation. The purpose of his suspension is to prevent him from causing harm or injury to the company as well as to his fellow employees.

The pertinent rules dealing with preventive suspension are found in Section 8 and Section 9 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997, which read as follows:

Section 8. Preventive suspension. The employer may place the worker concerned under preventive suspension only if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

Section 9. Period of suspension. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. 

When preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement or when preventive suspension is for indefinite period, only then will constructive dismissal set in.”

It is to be noted that preventive suspension is not a penalty nor is it a rush judgment that the erring employee is already adjudged guilty once placed under preventive suspension.

When is Preventive Suspension Tantamount to Constructive Dismissal?

When the suspension of an erring employee exceeds the maximum 30-day preventive suspension or it is imposed indefinitely, it will be tantamount to constructive dismissal.

An example of which is in the case of Premiere Development Bank v. NLRC, G.R. No. 114695, July 23, 1998 wherein the private respondent’s preventive suspension is without valid cause since she was outrightly suspended by petitioner. As of the date of her preventive suspension on March 13, 1986 until the date when the last investigation was rescheduled on April 23, 1986, more than 30 days had expired. The Court further upheld the decision of the NLRC to wit:

“By placing her on indefinite suspension, complainant was unduly deprived of her right to security in employment which is her only means of livelihood. It is very evident that complainant was already placed on constructive dismissal status as of March 13, 1986 when she was placed on preventive suspension indefinitely. The actuation of respondents since no other sound interpretation but a predetermined effort of dismissing complainant from the service in the guise of preventive suspension”.

Is an employee placed under Preventive Suspension entitled to pay?

No. For the period wherein an employee is placed under preventive suspension, said employee is not entitled to pay. However, when it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension (Gatbonton v. NLRC, G.R. No. 146779, January 23, 2006). Further, if the employer decides, for a justifiable reason, to extend the period of preventive suspension beyond 30-day period, he is obligated to pay the wages and other benefits due the worker during said period of extension.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 09175772207/ 09778050020.

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