Dear Atty. Kathy,
I am an officer in our company. Unfortunately, my second-in-command, S, was charged with anomalies in the disbursement of cash advances, diverted payroll funds and irregularities in the issuance of invoices/ official receipts. Because I am the approving officer for such transactions initiated by S, I was also charged for violations in our employee handbook and placed on preventive suspension for 30 days. When the 30 days was over, I reported back for work, however, I was told that my preventive suspension would still continue since the investigation on the charges against me is still ongoing, and that I should expect a call when there is already a decision. I have been on preventive suspension, no work and no pay, for 40 working days now. Is this still valid?
Ellis
□□□□□
Dear Ellis,
Section 8, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended, 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.
The right of the employer of placing an employee under preventive suspension, however, is subject to a restriction as to duration. Section 9 of the Omnibus Rules Implementing the Labor Code limits the duration of the preventive suspension to a maximum of 30 days, as follows:
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.
Based on the above provisions of the Omnibus Rules Implementing the Labor Code, it is evident that once the 30-day period of preventive suspension expires, an employer has the obligation to reinstate the employee, unless there is a valid extension of the preventive suspension. During any such extension of the preventive suspension, the employer has the responsibility to pay the salaries and benefits of the employee. If the preventive suspension exceeds the 30-day limit without physical or payroll reinstatement, or if it is imposed for an indefinite term, this amounts to constructive dismissal.
Based solely on your narration, you have been on preventive suspension for 40 working days, no work and no pay, and it is not specified when your preventive suspension will end. These circumstances lead to the conclusion that the extension of your preventive suspension is not valid, and that constructive dismissal set in upon the lapse of the 30-day limit for preventive suspension.
(Every Nation Language Institute, et al. versus Dela Cruz, G.R. No. 225100, 19 February 2020)
Atty. Kathy Larios