Illegal suspension

Dear Atty. Kathy,

My mother received a notice to explain from her employer. In the notice to explain, my mother was told that because of the charge of theft, she was on preventive suspension for 30 days, while the investigation is going on. The 30th day of the preventive suspension fell on a Friday. The next working day, Monday, my mother reported for work. However, she was not allowed to report for work anymore because she was already issued a dismissal notice. Can we claim illegal preventive suspension since my mother’s preventive suspension exceeded the 30 days by two days?

Denise

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Dear Denise,

Preliminarily, it is important to note that 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. The preventive suspension 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. During such preventive suspension, whenever justified, the preventively suspended employee is not entitled to the payment of salaries and benefits for the said period.

Further, as provided in the Omnibus Rules Implementing the Labor Code, no preventive suspension shall last longer than 30 days. After the 30 days, the employer shall reinstate the employee in the latter’s former or in a substantially equivalent position, or the employer may extend the period of suspension provided that during the period of extension, the employer pays the salaries and other benefits due to the employee.

Based solely on your narration, the 30 days preventive suspension of your mother lasted until a Friday, and that it was only on the next working day — the following Monday, when your mother was served the dismissal notice.

According to the ruling of the Supreme Court in the case of Santiago DJ. Sillano vs. JGC Philippines Inc., et al (G.R. No. 273562, 24 February 2025), considering the circumstance that after the last day of the preventive suspension the next working days came 2 days later, the preventive suspension did not exceed the 30-day limit. Thus, there is no basis for a claim of illegal preventive suspension on the basis of the supposed 2-day excess, since your mother’s preventive suspension was still within the prescribed period of 30 days.

Atty. Kathy Larios