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.


Placing an erring employee under preventive suspension: Is this a violation of the
workers right to due process? POINT OF LAW By POINT OF LAW Jefferson M. Marquez
An employee who is found guilty of committing a malfeasance or misfeasance is usually penalized by his
employer with suspension, if not, termination of employment. However, before any such penalty may be
imposed, the employer must establish the guilt of the employee through the conduct of an administrative
investigation. This requirement of investigation is mandatory especially where the penalty is termination of
employment and the employee does not admit his responsibility. As the conduct of the investigation takes
a while, there are instances where the employer may find it necessary before the start of the
administrative investigation to place an employee under preventive suspension.


Now is this kind of suspension not a prejudgment of the guilt of such employee? Does it not violate the
employees right to due process?


In a number of Supreme Court cases, it has been ruled that preventive suspension does not in itself
prove that the employer has prejudged that the employee was guilty of the charges he was asked to
answer and explain. Preventive suspension may be necessary for the protection of the company, its
operations and assets pending investigation for the alleged malfeasance or misfeasance on the part of
the officers or employees of the company and pending a decision on the part of the company (Soriano v.
NLRC et. Al., 155 SCRA 124 [1987]).


That it does not violate the employees right to due process was settled in the case of Globe Mackay
Cable and Radio Corp. vs. NLRC, et. al., 206 SCRA 701 [1992,] which involves a technical operations
manager who was found to have committed acts in conflict with his position with the company. The
Supreme Court said that such discovery necessitated immediate and decisive action. By itself, preventive
suspension does not signify that the company has adjudged the employee guilty of the charges she was
asked to answer and explain. Such disciplinary measure is resorted to for the protection of the companys
property pending investigation of any alleged malfeasance or misfeasance committed by the employee.
The Court also explained that that the complainants right to due process was not violated when she was
promptly suspended. If at all, the fault lay with her when she ignored the companys memorandum
giving her ample opportunity to present her side to the management. Instead she went directly to
the labor department and filed her complaint for illegal suspension without giving her employee a
chance to evaluate her side of the controversy.
The matter of preventive suspension is found in the rules implementing the Labor Code (Rule XIV, Book
V, Secs. 3 and 4, Omnibus Rules Implementing the Labor Code; see Rule XXIII, D.O. No. 09, Series of
1997, Secs. 8, and 9). It allows the employer to place the worker concerned under such status if his
continued employment poses a serious and imminent threat to life or property of the employer or of his
co-workers (In Global Inc. v. Atienza 148 SCRA 69 [1986], a sales clerk was placed under preventive
suspension for having violated company rules and regulation by incurring repeated absences and
tardiness. The Supreme Court ruled that it was illegal since the continued presence of the complainant
never posed a serious and imminent threat to the life or property of the employer or co-employees as
would warrant her preventive suspension.)


No preventive suspension shall last longer than 30 days (In JRS Business Corp. v. NLRC, et. al., 246
SCRA 445 [1995], the Supreme Court penalized the employer to pay indemnity in the amount of P1,000
when it violated the maximum 30-day preventive suspension.) 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 decided, after completion of the hearing, to dismiss the worker.


In Atlas Fertilizer Corp., et al v. NLRC, et al, 273 SCRA 549 [1997], an issue was raised whether or not a
notice of preventive suspension should be based on a specific finding that the employees presence
posed a serious and eminent threat to the companys property. The Supreme Court ruled that nothing in
the rule requires that the report upon which the suspension was based should make a specific finding that
the employees; presence posed a serious and imminent threat to the companys property. It is enough
that such fact can be cleaned from the circumstances of the case. In this case, complainants were buyers
assigned at the central purchasing office of the company. They were the subject of an audit. On April 23,
1992, the complainants were placed under preventive suspension pending investigation and were
required to explain in writing and under oath, why they should not be dismissed for serious misconduct
and willful disobedience of company rules.


In Jo Cinema Corp. et al v. NLRC et. al., 360 SCRA 142 [2001], the Supreme Court reversed the finding
of the Labor Arbiter who found that the complainant was constructively dismissed when he was placed
under preventive suspension. Here, the complainant was a theater porter employed by the company
which is engaged in the movie business. The company has a policy prohibiting the encashment of checks
without its permission. It appeared that sometime on Aug. 4, 5, 6 and 7, 1995, the complainant had
encashed checks amounting to P66,000 and deposited these checks in the account of the company.
However, these checks were dishonored for insufficiency of funds. On Aug. 25, 1995, the company asked
the employee to explain and at the same time, placed her under preventive suspension. On Aug. 22,
1995, she was directed by the company to appear for an administrative investigation on Aug. 26, 1995
which she attended and, where she admitted to have encashed checks without the permission of the
company. On Sept. 1, 1995, the complainant, while her case was being deliberated upon, filed a
complaint for illegal dismissal.


The Supreme Court ruled that there was no dismissal. Dismissal connotes a permanent severance or
complete separation of the worker from the service on the initiative of the employer regardless of the
reasons therefor. Based on this definition, the complainant was not dismissed from the service but was
merely placed under preventive suspension. Her suspension cannot be construed as a dismissal since
the cessation from work is only temporary. Moreover, the complainant could not have been dismissed on
Aug. 15, 1995 because a formal investigation was still being conducted. In fact she even attended said
investigation on Aug. 26, 1995. If she was indeed dismissed on said date, as she claims, the company
would not have continued with the investigation. Undoubtedly, the Supreme Court said that the
complainant pre-empted the outcome of the investigation by filing a complaint for illegal dismissal.


In yet another case of Dayan v. Bank of the Phil. Islands et al., G.R. No. 140692, Nov. 20, 2001, the Bank
noted alleged miconduct on the part of the Purchasing Officer of the bank, e.g. asking for five percent
commission on purchase orders, overpricing, soliciting gifts, etc. On June 10, 1993, the employee was
placed under preventive suspension effective immediately until further notice. After exhaustive
investigation, the bank terminated his services on Oct. 25, 1993. Again, the Supreme Court affirmed the
preventive suspension holding that the policy of preventively suspending an employee under investigation
for charges involving dishonesty is an acceptable precautionary measure in order to preserve the integrity
of vital papers and documents that may be material and relevant to the case and to which, otherwise,
would have access by virtue of his position. Here, the complainant was not just a rank and file employee.
He had the critical posts of senior assistant manager of the supplies inventory and purchasing officer of
the bank, handling fiduciary accounts and transactions and dealing with the banks suppliers. His position
carried the authority for the exercise of independent judgment and discretion, characteristics of sensitive
posts in corporate hierarchy where a wide latitude could be supposed in setting up stringent standards for
continued employment.