Preventive Suspension Must Not Be for Indefinite Period

Preventive Suspension Must Not Be for Indefinite Period

Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee.

For more discussion on preventive suspension please read Guide to Valid Dismissal of Employees 2nd Edition (pp. 303-316).

The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

The Implementing Rules provides that:

“Sec. 3. Preventive suspension.—The employer can place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.

Sec. 4. Period of suspension.—No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his for-mer 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 workers. 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.”

If there is no indication that the employee posed a serious threat to the life and property of the employer or his co-employees, preventive suspension is not proper. Neither was it shown that he was in such a position to unduly influence the outcome of the investigation. Hence, his preventive suspension could not be justified, and the payment of his salary differentials is in order. (See Valiao vs. CA, G.R. No. 146621, July 30, 2004.)

When it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension.

Thus, in one case, the grounds relied upon by the employer in placing employees under preventive suspension were the alleged violation of school rules and regulations on the wearing of uniform, tardiness or absence, and maliciously spreading false accusations against the school. These grounds do not, in any way, pose a threat to the life or property of the school, of the teachers or of the students and their parents. Hence, the Supreme Court affirmed the conclusion that the employee’s preventive suspension was illegal. (See Woodridge School (Now Known As Woodridge College, Inc.) vs. Benito, G.R. No. 160240, October 29, 2008.)

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. (Mandapat vs. Add Force Personnel Services, Inc. and CA, G.R. No. 180285, July 6, 2010, 624 SCRA 155, 163)

In Pido vs. NLRC (G.R. No. 169812, February 23, 2007, 516 SCRA 609.), the Court 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 (9)-month preventive suspension, the SC considered such to have ripened into constructive dismissal.

Thus, in a case where the employer places the employee on indefinite preventive suspension, the SC held there is already a clear violation of the proscription against indefinite or prolonged preventive suspensions, making the suspension tantamount to constructive dismissal. (See Agcolicol vs. Casiño, G.R. No. 217732, June 15, 2016)

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