Preventive suspension may not exceed 30 days

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Persida Acosta

Dear PAO,
I work in a private company. A few months ago, my employer preventively suspended me for 60 days because I was allegedly being investigated based on a certain accusation of my fellow employee. I was later on acquitted but still was not reinstated. I felt that what they did to me was wrong. Am I right?

Sincerely yours,
Lester

Dear Lester,
Preventive suspension that may be imposed by an employer incidental to an investigation may not exceed thirty (30) days. Otherwise, such is tantamount to constructive dismissal. The Supreme Court, in Marilacum Mining Corporation vs. Antonio Decorion (G.R. No. 158637, April 12, 2006), speaking through former Associate Justice Dante Tinga delineated and clarified the rules regarding preventive suspension and constructive illegal dismissal:

“Sections 8 and 9 of Rule XXIII, Book V of the Implementing Rules provide as follows:

Section 8. Preventive suspension. — 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 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. [xxx]

The rules are explicit that 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.

In this case, Decorion was suspended only because he failed to attend a meeting called by his supervisor. There is no evidence to indicate that his failure to attend the meeting prejudiced his employer or that his presence in the company’s premises posed a serious threat to his employer and co-workers. The preventive suspension was clearly unjustified.

What is more, Decorion’s suspension persisted beyond the 30-day period allowed by the Implementing Rules. In Premiere Development Bank v. NLRC, private respondent’s suspension lasted for more than 30 days counted from the time she was placed on preventive suspension on March 13, 1986 up to the last day of investigation on April 23, 1986. The court ruled that preventive suspension, which lasts beyond the maximum period allowed by the Implementing Rules amounts to constructive dismissal.”

Considering that the preventive suspension imposed on you by your employer exceeded thirty (30) days, such is tantamount to constructive dismissal. As such, you may file a case for constructive illegal dismissal in the National Labor Relations Commission.

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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