D. Preventive Suspension

Frequency: ★★☆☆☆

1. Preventive suspension

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 of the Omnibus Rules Implementing the Labor Code, as amended)

Concept: Preventive suspension. Preventive suspension is not a penalty but a disciplinary measure to protect life or property of the employer or the co-workers pending investigation of any alleged infraction committed by the employee. (Every Nation League Institute (ENLI) v. Dela Cruz, G.R. No. 225100, 19 February 2020)

Same; Subject of an investigation. Preventive suspension may be legally imposed against an employee whose alleged violation is the subject of an investigation. (Maula v. Ximex Delivery Express, Inc., G.R. No. 207838, 25 January 2017)

Same; When justified. Preventive suspension is justified only when the employee’s continued employment poses a serious and imminent threat to the employer’s or co-workers’ life or property. (Every Nation League Institute [ENLI] v. Dela Cruz, supra.)

Same; Purpose. The purpose of suspension is to prevent-harm or injury to the company as well as to fellow employees. (Maula v. Ximex Delivery Express, Inc., supra.)

Same; Non-entitlement to salaries and benefits. When justified, the preventively suspended employee is not entitled to the payment of his salaries and benefits for the period of suspension. (Every Nation League Institute [ENLI] v. Dela Cruz, supra.)

Every Nation League Institute (ENLI) v. Dela Cruz (2020)
Here, Dela Cruz’s preventive suspension was justified considering that, as branch manager, she had unlimited access to the Calamba branch’s finances, property, and records. As Dela Cruz herself admitted, she managed the Calamba branch as if she were the owner thereof. Nevertheless, the management’s prerogative of placing an employee under preventive suspension is further temporally limited. x x x
Maula v. Ximex Delivery Express, Inc. (January 2017)
As succinctly stated above, preventive suspension is justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. Without this kind of threat, preventive suspension is not proper. Here, it cannot be said that petitioner posed a danger on the lives of the officers or employees of respondent or their properties. Being one of the Operation Staff, which was a rank and file position, he could not and would not be able to sabotage the operations of respondent. The difficulty of finding a logical and reasonable connection between his assigned tasks and the necessity of his preventive suspension is apparent from the fact that even respondent was not able to present concrete evidence to support its general allegation.
Artificio v. NLRC, RP Guardians Security Agency, Inc. (2010)
In this case, Artificio’s preventive suspension was justified since he was employed as a security guard tasked precisely to safeguard respondents’ client. His continued presence in respondents’ or its client’s premises poses a serious threat to respondents, its employees and client in light of the serious allegation of conduct unbecoming a security guard such as abandonment of post during night shift duty, light threats and irregularities in the observance of proper relieving time.
Mandapat v. Add Force Personnel Services, Inc. (July 2010)
Petitioner [employee] contests the grounds for her suspension as she denies posing a danger on the lives of the officers or employees of respondent or of their properties. Petitioner adds that she was not in a position to bind respondent to any contract, therefore, she could not and would not be able to sabotage the operations of respondent. Upon the other hand, respondent [employer] asserts that preventive suspension was necessary in order to protect the assets and operations of the company pending investigation of the alleged infractions committed by the employee concerned.
Respondent is correct. Indeed, as sales manager, petitioner had the power and authority to enter into contracts that would bind respondent, regardless of whether these contracts would prove to be beneficial or prejudicial to the interest of respondent. Respondent has every right to protect its assets and operations pending investigation of petitioner.
Neither could we consider the acts of disconnection of computer and internet access privileges as harassment. Respondent clearly explained that the cessation of her internet and network privileges were but a consequence of the investigation against her and not for the purpose of harassment. The Court of Appeals gave merit to respondent’s explanation and held, thus:
x x x while her suspension, cessation of internet privileges, and exclusion from local network access were but a consequence of the investigation against her, and were intended to prevent her from having further access to the company’s network-based documents and forms.
The acts respondent complains about are just measures enforced by respondent to protect itself while the investigation was ongoing.

2. 30-day limitation

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. (Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended)

Constructive dismissal – if not reinstated after 30-day limitation. When the period of preventive suspension exceeds the maximum period allowed without reinstating the employee actually or through payroll, or when the preventive suspension is for an indefinite period, constructive dismissal sets in. (Every Nation League Institute (ENLI) v. Dela Cruz, supra.)

Every Nation League Institute (ENLI) v. Dela Cruz (2020)
Section 9 is clear that the employer had the positive duty of reinstating the preventively suspended employee upon the lapse of the 30-day period sans extension. x x x
Agcolicol, Jr. v. Casiño cites instances considered as amounting or tantamount to constructive dismissal such as: where the employee’s prolonged suspension was due to the employer’s neglect to conclude the investigation; where the employer’s imposition of preventive suspension pending final investigation was coupled with the employer’s lack of intention to conduct such final investigation; where placing the employee under preventive suspension in excess of the 30-day limit was a predetermined effort to dismiss the latter from service in the guise of preventive suspension; and where the employer failed to recall the employee to work after the expiration of the suspension taken together with the employer’s precondition that the employee withdraw the complaints against it.
In this case, it is admitted that while Dela Cruz’s complaint before the Labor Arbiter was pending, the 30-day preventive suspension period expired without ENLI causing its extension. Despite the expiration of the preventive suspension period, Dela Cruz did not report for work.
However, we note that there was nary an effort on the part of ENLI to reinstate Dela Cruz to her former position either actually or through payroll. Neither did ENLI require Dela Cruz to report for work either through a return to work notice or similar correspondence, or at least manifested the same during the proceedings before the Labor Arbiter. There was also no conclusion as to the result of the investigation which necessitated the preventive suspension. These circumstances, taken together, inevitably lead to the conclusion that upon the expiration of the preventive suspension on July 22, 2012, constructive dismissal had set in.
While it is true that Dela Cruz could not have included in her complaint the charge of illegal dismissal as she was preventively suspended (which Dela Cruz claimed to be illegal dismissal) only thereafter, the Labor Arbiter could nevertheless have resolved the issue of whether the preventive suspension ripened into constructive dismissal, especially considering that respondents filed their position paper in September 2012 and the Labor Arbiter released his decision in February 2013, or well after the period of suspension expired.
Thus, the NLRC was correct in reversing the Decision dated February 21, 2013 of the Labor Arbiter not because Dela Cruz was illegally dismissed on June 22, 2012, but because her preventive suspension which was initially valid had ripened into constructive dismissal upon the lapse thereof on July 22, 2012 without Dela Cruz having been reinstated actually or in the payroll.
Having been constructively dismissed, Dela Cruz is entitled to the payment of backwages from the time of her dismissal on July 22, 2012 up to the finality of this decision. Dela Cruz is likewise entitled to reinstatement but considering that seven years have lapsed, it is more in consonance with substantive justice to award her with separation pay computed at one month pay for every year of service.

3. Not a penalty unto itself

Not a penalty, but a measure of protection. Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his alleged misfeasance while the same is being investigated. While the former may be imposed on a respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at the termination of the investigation or the final disposition of the case. (Philippine Airlines, Inc. v. NLRC, Castro, G.R. No. 114307, 08 July 1998)

(Philippine Airlines, Inc. v. NLRC, Castro (July 1998)
It is undisputed that the period of suspension of respondent lasted for three (3) years and six (6) months. PAL, therefore, committed a serious transgression when it manifestly delayed the determination of respondent’s culpability in the offense charged. PAL stated lamely in its petition that “due to numerous administrative cases pending at that time, the Committee inadvertently failed to submit its recommendation to (the) management.” This is specious reasoning. The rules clearly provide that a preventive suspension shall not exceed a maximum period of 30 days, after which period, the employee must be reinstated to his former position. If the suspension is otherwise extended, the employee shall be entitled to his salaries and other benefits that may accrue to him during the period of such suspension. The provisions of the rules are explicit and direct; hence, there is no reason to further elaborate on the same.
x x x
PAL contends that when respondent consented to the resolution that the entire period of suspension shall constitute his penalty for the offense charged, the latter is thereby estopped to question the validity of said suspension. We concur with the labor arbiter when be ruled that the ensuing conformity by respondent does not cure petitioner’s blatant violation of the law, and the same is therefore null and void. Thus, “to uphold the validity of the subsequent agreement between complainant and respondent regarding the imposition of the suspension would be repulsive to the avowed policy of the State enshrined not only in the Constitution but also in the Labor Code.”

Disclaimer: All information herein is for educational and general information only intended for those preparing for the bar exam. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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