Preventive suspension is one of the disciplinary tools provided by the Labor code. But there seems to be some confusion when it can be imposed. Does every case need to include it? Am I doing something wrong by not imposing it? Let's tackle these in today's article.
This is an optional tool
The first thing that you need to understand about preventive suspension is that it is an optional tool. You are not obligated to use it if you don't feel the need to do so. It's an additional benefit so that you can conduct investigations unimpeded.
In fact, there is absolutely nothing wrong with completing a disciplinary case without going thru the Preventive Suspension process. You can eventually impose a termination, suspension or memo legally without it.
But it does help in a few select instances. You just have to be familiar with these kinds of situations so you don't overuse it. Imagine that you have a tool kit, and Preventive Suspension should be treated like a precision instrument. You choose the right situations to use this tool. You don't go around thinking that this tool will apply to all situations. The employer should be clear about why they are imposing preventive suspension and how to make the most of it.
3 things that need to be present before you impose Preventive Suspension
I wrote an article on this before, but I feel that everyone would benefit from a review. I emphasized that there are 3 things that I look for to say that you can impose Preventive Suspension.
First, there has to be an Immediate threat – if you let the worker into the workplace, the probability of something bad happening is very high. It is, in fact, immediate and imminent. It is not merely hypothetical or speculative.
Second, the threat may be against life/persons – Physical injury or even death may occur if you let this person back into the workplace. This can be people hurting other people (see this article for examples). That is an immediate threat to life/persons. You should have something similar before you apply preventive suspension.
Third, the threat may be against property – If persons are not at risk, then company property is. Let’s say that your employee is suspected of stealing cash from the registers. If you let this employee keep on working without a proper investigation, then the chances of the employee continuing to steal from you is very imminent because that employee has the same access and opportunity to keep on doing what they have been doing. That could serve as the basis because there is a threat to the company’s property.
If these elements are there, then I think it's safe to utilize Preventive Suspension. This is in consonance with the Implementing Rules of the Labor Code (Rule XXIII, Book V) which states:
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
How do you preventively suspend them?
To preventively suspend a person, you send them a Notice of Preventive suspension. In other cases, you can even include this notice in the Notice to Explain. Take note that the law generally allows you a maximum of 30 days for the preventive suspension.
Note: If you need assistance on this, I highly suggest approaching your HR or legal team (if available) so that your disciplinary efforts are coordinated.
Now what?
Now that you've determined that there's an immediate threat and you've preventively suspended a person, what now? What do you do with the time that the employee is not reporting to work?
Well, according to the law, you use that time to conduct an extensive investigation. That way, the person under investigation would be prevented from tampering with evidence or influencing witnesses. You'll basically have a free hand to get to the bottom of things without any interference.
During this time, I'd like to point out that the employee is not entitled to wages and benefits during this period.
What happens if there's no immediate threat?
Well, let's go back to the law. Preventive suspension is actually an exception to the fact that employees have the right to continued employment. The law is allowing you to suspend their employment on the premise that their continued presence is an immediate threat.
If there is no immediate threat, then there is no basis to impose the Preventive Suspension. In this case, I'd say that you owe the employee his pay for the days when improper preventive suspension was imposed. Check out the case of "MAULA vs. XIMEX DELIVERY EXPRESS (G.R. No. 207838) which is a good example of this rule being applied.
Hope this helped!
Hope this article was able to teach you more about preventive suspensions. This topic usually gets asked when I discuss discipline and termination issues with employers.
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