Implementing rules on employee suspension

Dear PAO,
I’ve been working in a travel agency for eight years. After working with a team whom I thought are really professionals, they exaggerated telling our big boss about the usage of company’s Internet, made an issue out of it and thus, if I commit even minimal mistakes in my work, would result to an emergency meeting and heated arguments with my boss. Our company is just a small organization, where our performance evaluation is based on verbal observations and comments from clients and our doc.

manager (a good friend of my boss). So after receiving verbal comments from our doc. manager, my big boss suspended me for two months. Now, my question is, is there such a thing as two months suspension?
Sincerely yours,
Marifi

Dear Marifi,
There is such a thing as suspension from employment in a private company or corporation. Suspension may be ordered either as a means of facilitating and protecting the integrity of an investigation or as a penalty.  You failed to mention in what context you were suspended. Thus, we shall discuss both.

The Implementing Rules of the Labor Code as cited by the Supreme Court states to wit:
“Sections 8 and 9 of Rule XXIII, Book V of the Implementing Rules provide as follows:

Section 8. Preventive suspension.—The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or his co-workers.

Section 9. Period of Suspension—No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.

As succinctly stated above, preventive suspension is justified where the employee’s continued employment poses a serious and imminent threat to the life or property of the employer or of the employee’s co-workers. Without this kind of threat, preventive suspension is not proper.” (Artificio v NLRC, GR 172988, July 26, 2010)

Thus, if there is no showing that you pose any threat to your employer or co-employees, the preventive suspension is unjustified.  Further, if the preventive suspension ordered exceeds the period provided for under the law, as in your case, the Supreme Court has ruled that “ .  .  .  preventive suspension which lasts beyond the maximum period allowed by the Implementing Rules amounts to constructive dismissal.” (Maricalum Mining Corp. v Decorion, GR 158637, April 12, 2006) In that case, you may file the appropriate complaint against your employer before the National Labor Relations Commission (NLRC).

On the other hand, if the suspension ordered against you is already the penalty imposed for your alleged infractions, your employer before meting out said penalty as with the imposition of all other penalties, must have complied with the due process requirements under the law, which basically gives the employee the right to be heard in relation to the charges leveled against him/her.  Thus, the employee must have been given notice of the complaint or existence of an apparent basis for disciplinary action against him/her. Also, the employee must be given the right and reasonable opportunity to answer the complaint and allegations against him/her.

In fact, the Supreme Court has highlighted the importance of giving the employee the first written notice especially in cases involving possible termination or dismissal. It held that:

“The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.” (Benjamin and Consolacion v Amellar Corp., GR 183383, April 5, 2010, citing King of Kings Transport v Mamac)

Thus, if your employer failed to comply with the substantive and procedural due process requirements provided under the law, you may then file the appropriate complaint before the National Labor Relations Commission. –Persida Acosta, Manila Times

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