Preventive Suspension Meaning
Preventive suspension may be defined as the temporary removal of an employee
charged for violation of company rules from his present status or position.
Preventive suspension is usually imposed against subject employee while the
company is conducting an investigation for his alleged violation in order to prevent
him from causing further harm or damage to the company or his co-employees.
Preventive suspension is not a disciplinary measure, and should not be confused
with suspension imposed as a penalty.
Legal Basis
The right of employer to impose preventive suspension is not found in the Labor
Code itself.
The oft-cited legal basis for imposition of preventive suspension is Section 8 and
Section 9 of Rule XXIII, Book V, of the Omnibus Rules Implementing the Labor
Code, as amended by Department Order No. 9, Series of 1997, which read as
follows:
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.
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. In such case, the worker shall not be bound to
reimburse the amount paid to him during the extension if the employer decides,
after completion of the hearing, to dismiss the worker.
Interestingly, the above-quoted provisions are no longer reproduced in the present
Omnibus Rules, as amended by Department Order No. 40, Series of 2003, which
supersedes Department Order 9-97.
It is opined, however, that the removal of said provisions from the omnibus rules
did not diminish the right of the employer to impose preventive suspension,
considering that the justification for upholding the right is necessity itself, i.e.,
when continued employment poses threats to the life of the employer or his co-
worker.
When Employee may be Placed under 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.
It is not the nature or gravity of the charge against the employee that should be
made the basis for placing him under preventive suspension.
Thus, in a case, the Court held that it is improper for the employer to place under
preventive suspension employees charged of violation of school rules and
regulations on the wearing of uniform, tardiness or absence, and maliciously
spreading false accusations against the school. (See Woodridge School vs. Pe
Benito, G.R. No. 160240, October 29, 2008.)
Maximum Period of Preventive Suspension
The maximum period of preventive suspension under the rule is 30 days. After that
period, the worker must be reinstated to his former position, or in a substantially
equivalent position. If the employer does not want to reinstate his employee for
whatever reason, he has the option to extend the period of suspension with the
condition that he must pay the worker his wages and other benefits during the
entire period of extension.
The latter option is called payroll reinstatement (as opposed to the former which is
called actual reinstatement).
In case the employer opts for payroll reinstatement, the employee is not bound to
reimburse wages and benefits paid even if he is ultimately dismissed from service,
and regardless of whether the ground for preventive suspension is proved to be
valid.
Payment of Wages during Preventive Suspension
The employee placed under preventive suspension is not entitled to payment of
wages. This rule, however, presupposes that the suspension is valid. If the
suspension is invalid or illegal, the employee shall be entitled to payment of wages
during the entire period of illegal suspension. (See Gatbonton vs. NLRC, G.R. NO.
146779, January 23, 2006.)
Likewise, if the suspension is extended beyond the 30-day limit, the employee
shall be entitled to wages and other benefits for the period of the extension.
When Preventive Suspension amounts to Constructive Dismissal
When preventive suspension exceeds the maximum period allowed without
reinstating the employee either by actual or payroll reinstatement (see Hyatt Taxi
Services Inc. vs. Rustom M. Catinoy, G.R. No. 143204, June 26, 2001), or when
preventive suspension is for indefinite period (see Pido vs. National Labor
Relations Commission, G.R. No. 169812, Feb. 27, 2007), constructive
dismissal will set in.
