Preventive suspension

Dear Atty. Vlad,

I am a Finance Manager in one of the manufacturing companies in Biñan, Laguna. The President accused me of stealing money from the company. After issuing a Notice to Explain, he placed me under preventive suspension. He said they will be investigating but did not provide any period for the said suspension. I would like to know if my preventive suspension is valid and if I will also be receiving no salary for the time being.

Ferdinand

An employer may place an employee under preventive suspension when the employee’s continued employment poses a serious and imminent threat to the employer’s or co-workers’ life or property. When justified, the preventively suspended employee is not entitled to the payment of his salaries and benefits during the period of suspension.

In the case of Every Nation Language Institute (ENLI) and Ralph Martin Ligon vs Maria Minelie de la Cruz, G.R. 225100, 19 February 2020, the Supreme Court explained again, the grounds for preventive suspension and for how long can an employee be placed under preventive suspension, to wit:

Placing an employee under preventive suspension is allowed under Section 8, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended. This section provides:

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.

Preventive suspension is not a penalty but a disciplinary measure to protect life or property of the employer or the co-workers pending investigation of any alleged infraction committed by the employee. Thus, it is justified only when the employee’s continued employment poses a serious and imminent threat to the employer’s or co-workers’ life or property. When justified, the preventively suspended employee is not entitled to the payment of his salaries and benefits for the period of suspension.

Here, De la Cruz’s preventive suspension was justified considering that, as branch manager, she had unlimited access to the Calamba branch’s finances, property, and records. As De la Cruz herself admitted, she managed the Calamba branch as if she were the owner thereof. Nevertheless, the management’s prerogative of placing an employee under preventive suspension is further temporally limited. Section 9 of the Omnibus Rules Implementing the Labor Code limits the duration of the preventive suspension to a maximum of 30 days:

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.

Section 9 is clear that the employer had the positive duty of reinstating the preventively suspended employee upon the lapse of the 30-day period sans extension. When the period of preventive suspension exceeds the maximum period allowed without reinstating the employee actually or through payroll, or when the preventive suspension is for an indefinite period, constructive dismissal sets in.

Hence, even if your employer was able to prove that your presence poses a serious and imminent threat to your employer’s or co-workers’ life or property, the period of preventive suspension cannot be indefinite. After 30 calendar days, you must either be reinstated physically or in payroll. If your employer fails to do this, this will amount to constructive dismissal.

I hope that I was able to help you.