• Placing an employee under preventive suspension

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    Persida Acosta

    Persida Acosta

    Dear PAO,
    There was a physical altercation between two of our employees in our company. It appeared that one of those involved went to work drunk, and had an argument with another employee that resulted in a fist fight. The latter employee ended up with a bloodied nose and a swollen eye. The drunken employee continued to make threats before he hurriedly left that day. Because of this incident, I ordered the Human Resource Department of our company to investigate the incident and suspend the two employees. Because of this, I want to confirm if we have sufficient reason to preventively suspend our employees in incidents like this, and if we are legally obligated to give them salaries during their suspension. Thank you for whatever advice you can give us.
    Josh

    Dear Josh,
    To address your concern, it is important that we briefly discuss the nature and purpose of a preventive suspension. Preventive suspension is generally a legally recognized measure used by an employer to suspend an employee during an investigation in relation to an incident affecting the workplace.

    The basis of issuing a preventive suspension is found in Section 8 of Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997 which provides:

    “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.”

    It is important to note that preventive suspension is not a penalty, but a part of a process to investigate a questioned action of an employee. This is clarified in a decision of the Supreme Court, where the late Justice Florentino Feliciano stated then that preventive suspension does not in itself prove that the employer already finds the employee guilty of the charges he is asked to answer and explain (Soriano v. NLRC et. al., G.R. No. 75510, October 27, 1987).

    This is further explained in another decision of the Supreme Court, wherein according to former Justice Alicia Austria-Martinez:

    “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. When, however, 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.” ([Gatbonton vs. NLRC, G.R. No. 146779, January 23, 2006] (Emphasis supplied)

    Basing on this jurisprudence on preventive suspension, it can be seen that the issuance by an employer of a preventive suspension is a reasonable and justifiable legal remedy given to him for the purpose of investigating and/or resolving workplace-related incidents that affect his company’s operations.

    With regard to your situation, it appears that the violent altercation you mentioned that occurred between your employees qualifies as a threat to life and property in your workplace, which then justifies the issuance of a preventive suspension. But while you may issue your employees a preventive suspension if the situation warrants, it is important to remember that the period of preventive suspension is limited by law that states:

    “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, Omnibus Rules Implementing the Labor Code, as amended by Department Order No. 9, Series of 1997)

    And lastly, with regard to salary during the period of the suspension, an employee placed under preventive suspension is not entitled to the payment of wages. If. however, the basis for suspension is later proven to be unfounded or invalid, the said employee is entitled to his salary during the whole period of his suspension. (Gatbonton vs. NLRC).

    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 dearpao@manilatimes.net

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