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In determining whether an employee's dismissal had been legal, the

inquiry focuses on whether the dismissal violated his right to


substantial and procedural due process.

1. An employee's right not to be dismissed without just or


authorized cause as provided by law, is covered by his right to
substantial due process.

2. Compliance with procedure provided in the Labor Code, on


the other hand, constitutes the procedural due process right of an
employee.

The violation of either the substantial due process right or the


procedural due process right of an employee produces different
results.

Termination without a just or authorized cause renders the


dismissal invalid, and entitles the employee to:

1. reinstatement without loss of seniority rights and other privileges


and full backwages, inclusive of allowances, and other benefits
or their monetary equivalent computed from the time the
compensation was not paid up to the time of actual
reinstatement - in case of strained relations (Separation Pay)

2. An employee's removal for just or authorized cause but without


complying with the proper procedure, on the other hand, does not
invalidate the dismissal.1âwphi1 It obligates the erring employer
to pay nominal damages to the employee, as penalty for not
complying with the procedural requirements of due process.

Thus, two separate inquiries must be made in resolving illegal


dismissal cases:

First, whether the dismissal had been made in accordance with


the procedure set in the Labor Code; and

Second, whether the dismissal had been for just or authorized


cause.12
According to the Omnibus Rules Implementing the Labor Code of the
Philippines, as amended by Department Order No. 9 Series of 1997:
“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.”(Rule XXIII, Book V, Ibid.)

The Supreme Court further explained the purpose and nature of a preventive
suspension, to wit:
“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. 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 However, 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. legal suspension”
(Gatbonton vs. NLRC, GR No. 146779, January 23, 2006, Ponente: former
Associate Justice Ma. Alicia Austria-Martinez).

Considering the above explanation, it can be deduced that the issuance by the
employer of a preventive suspension is not an arbitrary measure, but rather a
reasonable option legally given to employer for the purpose of investigating
and/or resolving workplace-related incidents that can impede its operations. In
the situation of your son, the allegation of theft against him qualifies as a
threat to property in his workplace which justifies the issuance of a preventive
suspension.

Albeit, remember that the period of preventive suspension is limited by the law,
which states that:
“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” (Rule XXIII, Book V, The Omnibus Rules
Implementing the Labor Code, as amended by Department Order No. 9, Series
of 1997).

Therefore, should your son’s employer continue to preventively suspend him


for more than 30 days, then he, maybe, is entitled to either an actual
reinstatement to his previous work or to a payroll reinstatement, wherein he
will be given his salary in case he is not actually recalled by his employer.
Finally, with regard to your son’s salary during the period of his suspension, an
employee placed under preventive suspension is not entitled to payment of
wages. However, if the basis for suspension is later proven to be unfounded or
invalid, then he will be entitled to his salary during the whole period of his
suspension (Gatbonton vs NLRC, Supra).