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PSYCH 29: Employee Relations

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.