Why this topic matters

In workplace discipline, employers often need to (1) require an employee to explain alleged misconduct and (2) immediately remove the employee from the workplace while an investigation is ongoing. In the Philippines, these actions correspond to the Notice to Explain (NTE) and preventive suspension. Questions arise when both are issued at the same time—especially whether doing so violates due process or converts preventive suspension into an illegal penalty.

In general, serving an NTE and imposing preventive suspension simultaneously is legally permissible in Philippine practice if the preventive suspension is justified by the circumstances and the employee is still afforded full procedural due process.

Key concepts at a glance

Notice to Explain (NTE)

The NTE is the first written notice in the two-notice rule for disciplinary cases that may result in serious penalties (including dismissal). It informs the employee of:

the acts/omissions complained of,
the company rule/policy (or standard of conduct) allegedly violated,
the possible penalty, and
a reasonable opportunity to submit a written explanation and evidence.

A widely-cited benchmark in Philippine labor practice is that an employee should be given at least five (5) calendar days to respond, absent urgent and exceptional circumstances.

Preventive suspension

Preventive suspension is a temporary removal from the workplace during investigation. Its purpose is not to punish but to prevent:

threats to life or property,
a serious and imminent risk to the employer’s operations, records, or witnesses,
interference with the investigation (e.g., tampering, intimidation).

In the private sector, preventive suspension is commonly limited to 30 days. If the investigation is not completed within that period, the employer typically must either:

reinstate the employee (even if the case continues), or
keep the employee off work but pay wages/benefits (often called “extension with pay” in practice).

The legal foundation: due process and management prerogative

1) Procedural due process in employee discipline (private sector)

Philippine labor law requires procedural due process for discipline based on just causes. The typical framework is:

First notice (NTE) – charge and chance to explain;
Hearing/conference (when necessary) – a meaningful opportunity to be heard, clarify issues, and present evidence (this can be a meeting, not necessarily a courtroom-style trial);
Second notice – written decision stating the facts and reasons for the penalty.

The core requirement is meaningful opportunity to respond, not ritualistic paperwork.

2) Preventive suspension as an incident of investigation

Preventive suspension is recognized as part of an employer’s ability to protect its business while investigating. But because it deprives the employee of work (and often pay), it is closely scrutinized for:

necessity (is there a real risk if the employee remains?),
reasonableness (is the duration justified and within limits?), and
good faith (is it being used as a shortcut penalty?).

Can an employer issue the NTE and preventive suspension on the same day?

Short answer: Yes, it can be legal—but only if safeguards are observed.

There is no rule that the NTE must be served days before preventive suspension. In fact, preventive suspension usually makes the most sense at the outset of an investigation, when the risk of interference is highest. What matters is whether the preventive suspension is independently justified and whether the employee is still given real due process.

Why simultaneous issuance is often used

Simultaneous issuance is common where allegations involve:

violence, threats, weapons, or serious safety risks;
theft, fraud, sabotage, or access to valuables and systems;
manipulation of records, inventories, funds, or digital logs;
potential witness intimidation (especially in supervisory roles);
conflict-of-interest situations where presence could compromise evidence.

The core test

Simultaneous issuance is defensible when:

The NTE properly specifies the charge(s) and invites an explanation within a reasonable period; and
Preventive suspension is supported by facts showing the employee’s continued presence poses a serious and imminent risk; and
The employer still conducts a prompt, fair investigation and does not “park” the employee indefinitely.

The biggest legal pitfall: preventive suspension used as punishment

Preventive suspension becomes vulnerable to challenge when it looks like a penalty imposed before the investigation concludes. Red flags include:

vague or conclusory statements like “loss of trust” without concrete risk-based reasons for removal;
suspension imposed for minor infractions (tardiness, performance issues) where presence does not threaten life/property or the inquiry;
repeated “rolling” suspensions to keep the employee off work without pay;
an investigation that drags on without clear activity, suggesting suspension is a substitute for discipline;
denial of a reasonable chance to explain because the employee is suspended and cannot access necessary documents or contact witnesses.

When preventive suspension is misused, an employee may claim it is an illegal suspension or an act of constructive dismissal in extreme cases, and seek backwages and damages depending on circumstances.

Requirements for a defensible NTE (especially when paired with suspension)

Essential contents of the NTE

A strong NTE should include:

specific facts: dates, times, locations, persons involved, and what exactly was done or not done;
the rule/policy violated (or at least the standard of conduct expected);
the classification of offense (if your Code of Discipline has one);
the possible penalty (including dismissal if applicable);
the deadline to submit an explanation and how to submit it (email/HR portal/physical submission);
invitation to a conference/hearing if the employee requests one or if credibility issues are central.

Reasonable opportunity to respond

Even if the employee is on preventive suspension, they must still be able to:

submit a written explanation,
present documents,
identify witnesses or request a conference,
respond to evidence used against them.

A preventive suspension should not be used to isolate the employee so thoroughly that responding becomes impossible.

Requirements for a defensible preventive suspension (private employment)

1) A risk-based justification

Your preventive suspension memo should clearly state the risk, such as:

access to cash/stock/records/systems creates a risk of tampering or loss;
allegations involve violence or threats and workplace safety is at stake;
potential retaliation or intimidation of complainants/witnesses.

The justification should be more than “pending investigation.”

2) Duration and the 30-day rule (common standard)

A common Philippine standard is:

preventive suspension up to 30 days (maximum, absent pay),
if the case continues beyond that, reinstate or continue the exclusion with pay.

Practical note: even within 30 days, the employer should aim for a prompt investigation. The longer it takes, the more suspicious the suspension may appear.

3) Written notice

Preventive suspension should be in writing and specify:

effective date,
duration,
reason tied to investigation risk,
instructions (e.g., return of company property, access restrictions),
how the employee can communicate with HR/investigation team.

4) Non-discriminatory, good-faith application

Similar cases should be treated similarly. Selective or retaliatory suspensions are vulnerable to claims of bad faith or unfair labor practice in union contexts.

Timing and sequencing: what “simultaneous” should look like in a fair process

A legally sound sequence often looks like this:

Day 0

Employer issues NTE (detailed charge).
Employer issues preventive suspension memo effective immediately (risk-based).
Employer provides a channel for the employee to submit explanation and evidence.

Day 5 (or a reasonable response deadline)

Employee submits written explanation (or requests conference).

Within the suspension period

Investigation proceeds: interviews, document review, confrontation of evidence where appropriate.
Conference/hearing conducted if necessary for fairness.

Conclusion

Employer issues second notice/decision stating findings and penalty (if any).
If dismissing, decision should clearly connect facts to the ground for dismissal and explain why trust/confidence (if invoked) is warranted by proven acts.

Simultaneous issuance does not excuse the employer from completing the rest of the due process steps.

Special considerations

1) “Floating status” vs preventive suspension

“Floating status” is a different concept typically tied to business downturns or lack of assignment in certain industries (e.g., security services), with different rules. Do not label a disciplinary removal as “floating” to avoid due process; that can backfire.

2) Access to evidence and confidentiality

Employers may limit system access during suspension. That is acceptable if legitimate, but fairness may require:

providing copies of relevant evidence (or at least a chance to review it),
allowing the employee to request documents needed for their defense,
ensuring confidentiality protocols don’t become a pretext to deny due process.

3) Unionized workplaces and CBAs

Collective bargaining agreements often contain:

defined procedures and timelines,
representation rights,
grievance machinery steps.

A CBA may impose stricter rules than baseline law. If so, the CBA procedure must be followed.

4) Managerial employees and “loss of trust and confidence”

For managerial employees, employers often rely on “loss of trust and confidence,” but it must still be grounded on clearly established facts and not mere suspicion. Preventive suspension may be justified where access and authority create a serious risk during investigation, but due process remains required.

Public sector note: government employees have a different framework

In the government (civil service), preventive suspension is governed by administrative law rules and is typically linked to:

a formal charge and
statutory/administrative standards (often involving whether the charge is grave, and whether the employee’s continued presence could influence witnesses or tamper with evidence).

While the idea of preventive suspension is similar, the procedural triggers, durations, and authorities differ from private employment. Thus, “simultaneous NTE + preventive suspension” in government practice depends on the agency’s applicable administrative rules, not the Labor Code framework.

Practical compliance checklist (private sector)

If you plan to issue both at once, make sure you have:

A detailed NTE (facts, rules violated, possible penalty, response period).
A separate preventive suspension memo explaining the specific risk.
A reasonable response window (commonly 5 calendar days), with clear submission instructions.
A functioning investigation plan (assigned investigator, interview schedule, evidence list).
A timetable to finish within 30 days or a plan to reinstate/extend with pay if needed.
Documentation of activity during the suspension (minutes, interview notes, evidence logs).
A final written decision explaining findings and reasons.

Remedies and exposure if done incorrectly

When simultaneous service is mishandled, potential consequences include:

a finding of procedural due process violation (which can result in monetary awards even if a just cause exists);
liability for illegal suspension (wage recovery for the period);
in severe or bad-faith scenarios, risk of illegal dismissal or constructive dismissal findings, with reinstatement/backwages or separation pay in lieu, depending on the case posture.

Bottom line

Serving an NTE and preventive suspension simultaneously is generally lawful in the Philippines when preventive suspension is a genuinely protective measure (not a premature penalty), is time-bounded and justified, and the employee is still given full, meaningful due process—including a real chance to explain, access necessary information, and receive a reasoned written decision.

If you want, paste your draft NTE and preventive suspension memo (with names removed), and I can rewrite them to align with best-practice due process language and risk-based justification.