Worker under preventive suspension not entitled to pay

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Persida Acosta

Persida Acosta

Dear PAO,
I received a letter from the Human Resource Department of our office informing me that I will be preventively suspended from work during their investigation for my alleged violent altercation with a co-employee. While I accept and agree with their decision since it will give me time to cool off, I am disturbed when I learned that I would not be receiving my salary during my suspension. Is this proper and legal considering that it was their decision to suspend me even when I’m willing to work and earn money during my suspension? I don’t feel that it is fair for a hardworking employee like me. I hope you can enlighten me on this matter. God bless!
Stephen

Dear Stephen,
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. According to the Omnibus Rules Implementing the Labor Code of the Philippines:

“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).

The purpose and nature of preventive suspension is further explained by the Supreme Court in the case of Gatbonton vs. NLRC (G.R. No. 146779, January 23, 2006), wherein it stated that:


“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.”

Considering the above explanation on the nature of preventive suspension, it can be seen that the issuance by the employer of a preventive suspension is not an arbitrary measure but rather a reasonable option legally given to the employer for the purpose of investigating and or resolving work place related incidents that can impede its operations. And based from your situation, the violent altercation you mentioned that occurred between you and a co-employee qualifies as a threat to life and property in your work place which justifies the issuance of a preventive suspension. Thus, despite your sentiment that the preventive suspension is not fair to you, you must respect and recognize this decision of your employer since this is justified and allowed by law.

Albeit, remember that the period of preventive suspension is limited as the law provides that:

“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).

Therefore, should your employer continue to preventively suspend you for more than thirty (30) days, you are entitled either to an actual reinstatement to your previous work or to a payroll reinstatement wherein you are given your salary in case you are not actually reinstated by your employer.

Finally, with regard to your salary during the period of your 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, you are entitled for your salary during the whole period of your 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.

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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