Issuance of Preventive Suspension Letter in the Philippines

What is Preventive Suspension?

Preventive suspension is a temporary measure imposed by an employer to remove an employee from the workplace during an ongoing investigation for alleged misconduct. This action is not a disciplinary measure but rather a precaution to prevent any potential harm or interference with the investigation process.

Legal Basis for Preventive Suspension

The legal foundation for preventive suspension in the Philippines is primarily found in the Labor Code of the Philippines. According to Article 292(b) [formerly Article 277(b)], an employer may place a worker under preventive suspension if their continued presence poses a serious and imminent threat to the life or property of the employer or their co-workers.

Grounds for Issuance

Preventive suspension can be justified under several conditions:

1. Serious Misconduct: Allegations of serious misconduct, such as theft, fraud, or violence, warrant preventive suspension to ensure safety and integrity.
2. Interference with Investigation: If the employee's presence could compromise the investigation by influencing witnesses or tampering with evidence.
3. Preservation of Evidence: To secure evidence that might be at risk of being destroyed or tampered with by the employee.

Duration of Preventive Suspension

The Labor Code stipulates that preventive suspension should not exceed 30 days. However, if the investigation cannot be completed within this period, the employer must either lift the suspension and reinstate the employee or extend the suspension with pay.

Procedure for Issuance

The process for issuing a preventive suspension involves several steps:

1. Notice to the Employee: The employee must be informed in writing about the preventive suspension, including the reasons for it and the duration.
2. Investigation: An impartial and thorough investigation should be conducted to ascertain the facts and determine the employee's culpability.
3. Hearing: The employee should be given an opportunity to be heard and present their side of the story.

Rights of the Employee

During the preventive suspension, the employee retains certain rights:

1. Right to Due Process: The employee must be given a fair chance to defend themselves against the allegations.
2. Right to Receive Notice: Proper written notice regarding the suspension and investigation details.
3. Right to Compensation: If the suspension exceeds 30 days without a resolution, the employee is entitled to their salary for the extended period unless the delay is due to the employee's fault.

Employer's Obligations

Employers must adhere to the following obligations:

1. Compliance with Legal Procedures: Ensure all steps of the preventive suspension process comply with legal requirements.
2. Fair Investigation: Conduct an unbiased investigation to avoid wrongful suspension.
3. Timely Resolution: Resolve the investigation within the 30-day period or provide justifiable reasons for any delay, ensuring the employee is compensated if necessary.

Conclusion

Preventive suspension is a critical tool for employers in the Philippines to maintain workplace safety and integrity during investigations. However, it must be exercised with strict adherence to legal procedures and respect for the employee's rights to ensure fairness and justice.