In the realm of Philippine Labor Law, the term "suspension" often creates confusion for both employers and employees. While the word is the same, the legal nature, purpose, and consequences of Preventive Suspension and Suspension as a Penalty are worlds apart.
A recurring question in HR departments and legal clinics is: If an employee was preventively suspended during an investigation and is later found guilty, can the time served under preventive suspension be credited against the actual penalty?
1. Defining the Two Types of Suspension
To understand whether crediting is possible, we must first distinguish between these two legal concepts.
Preventive Suspension
This is a remedial measure, not a penalty. It is a tool used by an employer during the pendency of an investigation.
- Purpose: To prevent the employee from causing further harm to the company’s property or records, or from intimidating witnesses.
- Requisite: The employee's continued presence must pose a serious and imminent threat to the life or property of the employer or co-workers.
- Duration: Maximum of 30 days.
- Pay: It is generally unpaid. However, if the suspension exceeds 30 days and the employer hasn't concluded the investigation, the employer must reinstate the employee (either physically or in payroll).
Suspension as a Penalty
This is a disciplinary measure. It is the actual punishment imposed after due process has been observed and the employee is found guilty of a violation.
- Purpose: To punish the worker for a specific infraction.
- Requisite: A finding of guilt following the "Two-Notice Rule" (Notice to Explain and Notice of Decision).
- Duration: Depends on the company's Code of Conduct or the severity of the offense.
- Pay: Always unpaid.
2. The Rule on Crediting: The Legal Standpoint
The short answer is No. Under Philippine Labor Law and established jurisprudence, preventive suspension cannot be credited against the suspension penalty.
Why They Cannot Be Interchanged
The Supreme Court has consistently held that preventive suspension is not a penalty. Because it serves a different purpose (protection of the business) than a disciplinary suspension (punishment for a wrong), they are treated as two distinct periods.
The Scenario of "Time Served"
If an employee is preventively suspended for 30 days and, after the investigation, the employer decides the appropriate penalty is a 30-day suspension, the employee must serve the penalty suspension separately.
Important Note: If the employee is found innocent after being preventively suspended without pay, the employer is legally obligated to pay the wages that the employee would have earned during those 30 days.
3. Key Differences at a Glance
| Feature | Preventive Suspension | Suspension Penalty |
|---|---|---|
| Nature | Preventive/Protective | Punitive/Disciplinary |
| Due Process | Can be imposed immediately (with a memo) | Requires full "Notice and Hearing" |
| Justification | Presence is a threat to the workplace | Actual commission of an offense |
| Max Period | 30 Days (under the IRR of the Labor Code) | Determined by Company Policy |
| Wages | Unpaid (unless found innocent) | Unpaid |
4. The Risks of "Automatic Crediting"
Employers should avoid the temptation to "credit" the time served for two main reasons:
- Admission of Fault: If an employer automatically credits preventive suspension as the penalty, it might look like the employer had already decided the guilt of the employee before the investigation was finished, potentially violating the employee's right to procedural due process.
- Backwages Claims: If the preventive suspension was found to be unjustified (i.e., there was no actual "threat" to the company), the employee can claim backwages for that period regardless of the eventual penalty imposed.
Summary of the "No-Credit" Principle
In the Philippines, the rule of thumb is: Preventive suspension is an investigation tool; a suspension penalty is a verdict. You cannot use a tool to pay for a verdict.
If the investigation yields a guilty result, the penalty starts only after the decision is rendered. If the employer wants the employee out of the office immediately after the investigation, they must issue the Notice of Decision and start the penalty period then.
Would you like me to draft a sample "Notice of Preventive Suspension" that complies with the "serious and imminent threat" requirement?