Preventive Suspension Meaning

Preventive suspension may be defined as the temporary removal

of an employee charged for violation of company rules from his

present status or position. Preventive suspension is usually

imposed against subject employee while the company is

conducting an investigation for his alleged violation in order to

prevent him from causing further harm or damage to the

company or his co-employees.

Preventive suspension is not a disciplinary measure, and should

not be confused with suspension imposed as a penalty.

Legal Basis

The right of employer to impose preventive suspension is not

found in the Labor Code itself.

The oft-cited legal basis for imposition of preventive suspension is

Section 8 and Section 9 of Rule XXIII, Book V, of the Omnibus

Rules Implementing the Labor Code, as amended by Department

Order No. 9, Series of 1997, which read as follows:

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.

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.

Interestingly, the above-quoted provisions are no longer

reproduced in the present Omnibus Rules, as amended by

Department Order No. 40, Series of 2003, which supersedes

Department Order 9-97.

It is opined, however, that the removal of said provisions from the

omnibus rules did not diminish the right of the employer to

impose preventive suspension, considering that the justification

for upholding the right is necessity itself, i.e., when continued

employment poses threats to the life of the employer or his co-

worker.

When Employee may be Placed under 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 not the nature or gravity of the charge against the employee

that should be made the basis for placing him under preventive

suspension.

Thus, in a case, the Court held that it is improper for the employer

to place under preventive suspension employees charged of

violation of school rules and regulations on the wearing of

uniform, tardiness or absence, and maliciously spreading false

accusations against the school. (See Woodridge School vs. Pe

Benito, G.R. No. 160240, October 29, 2008.)

Maximum Period of Preventive Suspension

The maximum period of preventive suspension under the rule is

30 days. After that period, the worker must be reinstated to his

former position, or in a substantially equivalent position. If the

employer does not want to reinstate his employee for whatever

reason, he has the option to extend the period of suspension with

the condition that he must pay the worker his wages and other

benefits during the entire period of extension.

The latter option is called payroll reinstatement (as opposed to

the former which is called actual reinstatement).

In case the employer opts for payroll reinstatement, the employee

is not bound to reimburse wages and benefits paid even if he is

ultimately dismissed from service, and regardless of whether the

ground for preventive suspension is proved to be valid.

Payment of Wages during Preventive Suspension

The employee placed under preventive suspension is not entitled

to payment of wages. This rule, however, presupposes that the

suspension is valid. If the suspension is invalid or illegal, the

employee shall be entitled to payment of wages during the entire

period of illegal suspension. (See Gatbonton vs. NLRC, G.R. NO.

146779, January 23, 2006.)

Likewise, if the suspension is extended beyond the 30-day limit,

the employee shall be entitled to wages and other benefits for the

period of the extension.

When Preventive Suspension amounts to Constructive

Dismissal

When preventive suspension exceeds the maximum period

allowed without reinstating the employee either by actual or

payroll reinstatement (see Hyatt Taxi Services Inc. vs. Rustom M.

Catinoy, G.R. No. 143204, June 26, 2001), or when preventive

suspension is for indefinite period (see Pido vs. National Labor

Relations Commission, G.R. No. 169812, Feb. 27,

2007), constructive dismissal will set in.