INDEFINITE SUSPENSION RESULTING TO CONSTRUCTIVE DISMISSAL
RESPONDENT Jerwin Casiño was hired by petitioner Emilio S. Agcolicol, Jr. in 2009 as stock custodian and cook in the latter’s Kubong Sawali Restaurant. Upon discovery of theft involving company property where respondent was allegedly a conspirator, a criminal complaint for qualified theft against him and his co-employees was filed on Nov. 26, 2012 before the office of the City Prosecutor of Baguio City. Additionally, he and his co-employees were preventively suspended indefinitely pending investigation.
On May 17, 2013, respondent filed with the NLRC a complaint for illegal dismissal, illegal suspension, and non-payment of monetary benefits. The Labor Arbiter (LA) found Casino constructively dismissed and awarded his money claims. The NLRC affirmed the LA decision which was likewise affirmed by the Court of Appeals (CA). Did the CA err?
Ruling: No.
Here, there is no inquiry on the propriety of petitioner’s resort to the imposition of a preventive suspension. What is now in question is the fact that respondent was preventively suspended by petitioner for an indefinite period of time and whether the imposition of indefinite preventive suspension is tantamount to constructive dismissal.
On the 30-day limit on the duration of an employee’s preventive suspension, We have previously ruled that “when preventive suspension exceeds the maximum period allowed without reinstating the employee either by actual or payroll reinstatement or when preventive suspension is for an indefinite period, only then will constructive dismissal set in.”
In Pido, upon which case the NLRC Second Division hinged its ruling in Casino’s case, We considered the employee’s “prolonged suspension, owing to the employer’s neglect to conclude the investigation, had ripened to constructive dismissal.” There, the employee was placed under preventive suspension for an indefinite period of time pending the investigation of a complaint against him. After the imposition of said suspension, however, the employer “merely chose to dawdle with the investigation in absolute disregard of the employee’s welfare.” In that case, the employer did not inform the employee that it was extending its investigation, nor was the latter paid his wages and other benefits after the lapse of the 30-day period of suspension. Neither did the employer issue an order lifting the suspension or any official communication for the employee to assume his post or another post. Having resulted in the employee’s nine-month preventive suspension, this Court considered such to have ripened into constructive dismissal. xxx In the case at hand, there is no question that what was meted was an indefinite preventive suspension pending investigation as clearly stated in the Memorandum Order dated Nov. 27, 2012. This, in itself, is already a clear violation of the proscription against indefinite or prolonged preventive suspensions, making the suspension tantamount to construc- tive dismissal as repeatedly held by this Court in a long line of cases. What further strengthens Our finding against petitioner is the fact that after the imposition of the indefinite preventive suspension on Nov. 28, 2012 and despite the city prosecutor’s dismissal of the case for qualified theft against respondent on Dec. 28, 2012,29 petitioner never issued a return-to-work order to respondent or any similar correspondence. The only communication received by respondent after the Nov. 27, 2012 memorandum order is the Jan. 10, 2013 letter, which letter was addressed to Lomboy.
Additionally, ‘the fact that the letter was addressed to Lomboy is, to us, an indication of petitioner’s lack of intention to obtain an explanation from respondent for his absences. This is so because, obviously, the letter was intended for Lomboy.
As in the above-cited cases, petitioner’s actuations and omissions after the imposition of the indefinite preventive suspension, coupled with the contents of the Letter and the circumstances surrounding its issuance, are proof of petitioner’s lack of desire to have respondent continue in his employment at Kubong Sawali. It does not cure petitioner’s violation of the 30-day limit. On the contrary, it strengthens the finding that respondent was indeed constructively dismissed. There is, therefore, no reason for Us to disturb the ruling of the CA affirming that of the NLRC Second Division. (Velasco, Jr., J.:, SC 3rd Division, Emilio S. Agcolicol, Jr. vs. Jerwin Casino, G.R. No. 217732, June 15, 2016).