Question:
We have a case of theft involving an employee and would prefer that the employee not be present in the office while we conduct our internal investigation. Is it legally possible to do this in the Philippines?
Answer:
What is Preventive Suspension?
In the Philippines, an employer can issue a "preventive suspension" to temporarily remove an employee from their duties. This action is typically taken when the employee's continued presence poses a threat to the company or its personnel, or could interfere with an ongoing investigation into the employee's alleged misconduct.
Legal Guidelines for Preventive Suspension
According to Department of Labor and Employment (DOLE) guidelines, a preventive suspension should not exceed 30 days. Exceeding this period without resolving the case may result in the employer being obligated to reinstate the employee or pay their wages for the period exceeding 30 days.
Due Process Requirements
Before imposing preventive suspension, due process should be observed. An employee accused of theft (or any form of misconduct) should be given an opportunity to explain their side. This is typically done by issuing a Notice to Explain (NTE) to the employee, detailing the accusations and asking for their written explanation.
Once the employee has had a chance to defend themselves, and if the employer still sees the need for it, a preventive suspension can be issued. The employee should be notified in writing, clearly stating the reason for the suspension and its duration.
Consequence for Non-compliance
Failing to follow the correct procedures for preventive suspension can expose the employer to potential legal risks, including wrongful termination suits or claims for violation of due process rights.
Conclusion
Yes, it is legally possible to keep an employee out of the office while investigating a theft case by placing them on preventive suspension. However, employers must adhere to specific guidelines and due process requirements to ensure that their actions are compliant with Philippine labor laws. It's advisable to consult with legal counsel to navigate the complexities of employment law in these sensitive situations.