Preventive suspension

Dear Atty. Vlad,

I am a manager in a manufacturing company in Metro Manila for more than 10 years now. One of my officemates maliciously accused me of stealing money from our cash vault. This rumor immediately spread in the office and the management suddenly issued a memo and placed me on indefinite preventive suspension. They 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 not be receiving any salary for the time being.

Rommel

***

Dear Rommel,

An employee may be placed 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 for the period of suspension.

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

“Preventive suspension is not a penalty but a disciplinary measure to protect the 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 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 on the payroll. If your employer fails to do so, this will amount to constructive dismissal.

I hope that I was able to answer your question based on the facts you told me.

Atty. Vlad del Rosario


Read more Daily Tribune stories at: https://tribune.net.ph/

Follow us on social media
Facebook: @tribunephl
Youtube: TribuneNow
Twitter: @tribunephl
Instagram: @tribunephl
TikTok: @dailytribuneofficial