My son was recently preventively suspended for 20 days from his work from allegations of theft. While I’m sure my son is innocent, we are concerned with the fact that he was told that he would not be receiving his salary during the period of his suspension. Can his company withhold his salary while he is suspended even though they have yet to prove the accusations against him? Thank for your advice!
In order to understand the situation of your son who is currently preventively suspended from his work, it is important that we discuss the nature and consequences of a preventive suspension to an employee. Generally speaking, preventive suspension is a legally recognized measure used by an employer to suspend an employee during an investigation in relation to an incident affecting the workplace. 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).
Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.
We hope that we were able to enlighten you on the matter.
Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to firstname.lastname@example.org