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Preventive Suspension

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1 Preventive Suspension on Thu Oct 06, 2011 1:11 pm

ace_legal


Arresto Menor
Hi Atty,

I also have a friend who had been subjected to preventive suspension due to collection manipulation that occurred in the operations (selling). The processes that had been undertaken was a short interview (say 20-30min interview), asking for his job functions, and if there were any written memorandums for the operating processes. Then, say after 2hours, the Preventive Suspension memo was served to him. (thinking that the interview was only made as dummy investigation) but my friend refused to sign because he cant take the fact that he was accused of anything he doesn't know.

During the serving of Preventive Suspension memo, the present company lawyer told him that;
1. he will be receiving any salaries during the period of suspension,
2. he shall be refunded of the salaries and benefits after the end of period of suspension,

At the end of the suspension period, he asked for the refund of his salaries and benefits. but the corporate HR took a while to respond. it took them 3months to respond.

===============
Response as noted were as follows;
We have sought for Corporate Legal's position on your case. Please see below.
"The employer (xxxx GROUP) 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 of his co-workers (Rule XIV, Sec. 3 OR). This rule gives the only valid ground for preventive suspension, namely if the continued employment of the worker poses a serious and imminent threat to the life or property of the employer or of his co-workers. The employee placed under preventive suspension is not entitled to payment of wages. Preventive suspension does not prejudge the employee's guilt, but is necessary for the protection of the company, its operations and assets pending investigation of the alleged malfeasance of the employee. (Soriano vs. NLRC, 155 SCRA 124)."

Considering that you are a manager, holding a key position in the organization and generally have the duties and responsibilities to manage the operational and fiscal activities of the department to include: staffing levels, budgets, and financial goals, and plan and develop systems and procedures to improve the operating quality and efficiency of the department, the preventive suspension is legal. With these duties and responsibilities as an Accounting Manager, you have control of company’s operations and properties.
Preventive suspension should not last longer than 30 days which on your part were made to report on the 31st day. 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. We took the action of reinstatement.
However, wages may be paid to the employee during the preventive suspension for humanitarian reasons as this is a management prerogative.Taking the Management prerogative in its pure context, in your case, the Management decided that your salary during your preventive suspension will not be reimbursed.
xxx, we hope that we have enlightened you and have finally given closure to this matter. We have learned our lessons with regard to this case and find reason to believe that whatever emotional/physical stress we have caused you during this time was made with careful consideration and has undergone due process for the finalization of such. Thank you xxxx.

============
Investigation report revealed that my friend had nothing to do with the collection manipulation made by the selling personnel and cashiers. In which, majority of the accused selling personnel and cashiers stated that he has no direct involvement on the case itself.

They identified him as manager in time of this suspension, but as position and benefit issues, they only consider him as supervisor.

With the above i would like to seek opinion on this matter.

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2 Re: Preventive Suspension on Thu Oct 06, 2011 11:52 pm

attyLLL


moderator
not sure if i understand, was he absolved of wrong doing? and if so, did he receive his wages for the time he was suspended?


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3 Re: Preventive Suspension on Sat Oct 08, 2011 4:33 pm

ace_legal


Arresto Menor
yes. he was absolved because it was proven that he was not part or involved in that incident. at the end of the preventive suspension, he did not receive any wages and allowances which were supposed to be given on a monthly basis.

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4 Re: Preventive Suspension on Sun Oct 09, 2011 3:44 pm

attyLLL


moderator
then he should send an email or letter requesting for payment of the time he was suspended. if refused, he can consider filing a complaint at nlrc for illegal suspension and money claim.


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5 Re: Preventive Suspension on Mon Oct 10, 2011 1:37 pm

ace_legal


Arresto Menor
thanks atty..will advice my friend with that. by the way, is there any references we can get so that we may be able to read or understand the provisions based on the given facts. thanks.

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6 Re: Preventive Suspension on Mon Oct 10, 2011 1:55 pm

ace_legal


Arresto Menor
also, this happened sometime in May 2010. can he still go after the claims?

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7 Re: Preventive Suspension on Tue Oct 11, 2011 8:15 pm

attyLLL


moderator
not good to wait 1 and 1/2 years, but still possible to claim. you have max of 3 years to do so.


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8 Re: Preventive Suspension on Sun Oct 07, 2012 1:51 am

ALEX BALINTE


Arresto Menor
HI ATTY,
ON AUG. 15, 2012, MY BOSS ISSUED PREVENTIVE SUSPENSION MEMO TO ME FOR FALCIFICATION OF PUBLIC DOCUMENTS. EFFECTIVITY DATE IS AUGUST 22, 2012 TO NOVEMBER21, 2012, THE ON AUGUST 22,2012 ANOTHER MEMO ORDER FOR MY DISMISSAL. MY QUESTION IS IS IT POSIBLE TO SUSPEND ME AND DISMISS ME FROM MY JOB AT DSAME TIME?

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9 pls help on Tue Oct 16, 2012 5:44 pm

themolech


Arresto Menor
Good day.. my employer just issued me a preventive suspension today for 30 days they say. for unauthorized used of network facilities (wi-fi internet access) which i have no knowledge that it is the company’s wifi access because it doesn’t have the company’s name when i first connect on the wifi access. as i told them it could have been wifi from the floor beneath or above or even the office beside our office. i just saw an unsecured wifi connection i connected to it but for some reason i cant really explain after i connected to the wifi access it auto config i just press next next on the window that appeared on my screen after that i had an internet connection. but my laptop name appeared as the wifi ssid or wifi name and the wifi produce its own password. since its free connection i shared the connection to my other co worker. i never approached the device itself as i told them clearly.
my question is that reason valid and poses a serious and imminent threat to the life or property of the employer or of his co-workers?
and if im not guilty, should my employer pay me the whole month they suspended me? i mean can go after the month the whole month that i should have earn?
thank you very much i hope you could address my query.

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10 Re: Preventive Suspension on Tue Oct 16, 2012 10:10 pm

attyLLL


moderator
that seems pretty harsh for free net access. imo, it should not warrant suspension


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11 Re: Preventive Suspension on Tue Oct 16, 2012 11:42 pm

themolech


Arresto Menor
can you pls give me some advice sir on what can i do? thank you very much sir

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12 Re: Preventive Suspension on Thu Oct 18, 2012 6:28 pm

attyLLL


moderator
make sure you are able to submit a written explanation.


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13 Re: Preventive Suspension on Wed Nov 20, 2013 12:22 pm

katelang


Arresto Menor
Can falsification subject to dismissal?

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14 Re: Preventive Suspension on Wed Nov 20, 2013 12:51 pm

Patok


Reclusion Perpetua
yes, but with due process.

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15 Re: Preventive Suspension on Wed Nov 20, 2013 12:58 pm

katelang


Arresto Menor
Sorry, i meant can falsification subject for preventive suspension Smile 

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16 Re: Preventive Suspension on Wed Nov 20, 2013 1:08 pm

Patok


Reclusion Perpetua
if there will be an investigation involve.. yes

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17 Re: Preventive Suspension on Wed Nov 26, 2014 3:25 pm

Symundo


Arresto Menor
my husband works in this feed industry as sales manager.  then on nov 5, 2014, he was handed this preventive suspension without any warning or notion thrown his way that he is being investigated.  he was slapped with a 30-day preventive on allegations of breach of trust and gross and habitual negligence. the preventive was effective a day after receipt of the nte.  he was charged for overcredit of customers' limit and incomplete customers information which he explained in writing was ongoing collection of the information by his sales agents since the needed informations are not from the main customers/clients of the company ("distributors")but only as guaranteed "little customers" as under the tutelages of the distributors".  on the overcredit issue, he defended that he has no control on the check and balance of the approval of sales order and approval because it is not within his jurisdiction , to do as such is being done by other departments, i.e. accounting and the credit collection, who do -the check-and-balance of the distributors credit for approval and not once in the processes up to approval of sales order and delivery does he have or had any hand on it.  he was called for an "interview" today by the HR dept and as of this moment, he was told to report on dec 1 pending investigation and result of the charges.  it seems he will be on my assessment on a "floating status" on the same company but not on the same position.

i am not comfortable with what is happening because learning from u and other readings it is not a reinstatement.  he was told to report to the office days less than the supposed end of the preventive which is on dec 5.  how do u see this development sir? what can be gained from here on our side? is this another "trap" leading to his termination? my husband knows that this is "politically-motivated" as someone is eyeing his position ever since and who has vowed to remove him from the company.

its very disturbing on what we must do next.  we consulted with nlrc days after preventive suspension but its really too early to tell what to do.  now its nearing the end of the 30 days but he is told to report on a "floating" status as he does not know what will be his status or his role in his comeback.  

we are very confused as we are just ordinary people working for a living for the family and being a pawn in the "capricious motivation of the ill-pampered political circus of the company."

what must we do, please advise.  it would be a great help to have ur inputs. and i have another thing, can he just hand over his resignation before a possible verdict if he is to be terminated? if he is served the termination or pending results yet, can he just resign so he can start his working life again?

is being called to work means he is out already of the preventive suspension given?

thanking so much for ur help.  i await response. God bless.

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18 Preventive Suspension on Wed Feb 11, 2015 4:51 pm

cjbjaj


Arresto Menor
Hi,

Good afternoon. I need a legal advice for my concern.

I received a Corrective Action Notice from my supervisor on the 20th of December 2014. However, the date of the notice was 8th of December. The Corrective Action contains Incident Report of allegations pertaining to my performance as a Trainer in a BPO company. Among the allegations were:
1. When asked about a specifics on product and does not have an immediate answer, pulled out a leader on the floor to discuss the answer to the question instead of putting the question in 'parking lot' and addressing it another time. This is a blatant disregard to the time that the leader on the floor can spend with his team.
2. Responded to trainees' question in a perceived hostile manner. This does not represent the company in a positive way.
3. Trainer's overall training and coaching skills are not effective:
 3.1 When training with a Powerpoint Presentation, read the entire presentation instead of maintaining eye contact with the trainees and explaining concepts in his own words after memorizing the flow of what is in the powerpoint.
 3.2 Instead of encouraging participation from trainees, read the presentation himself and discuss it himself. This does not allow for checking of understanding and does not allow for interaction among trainees and between the trainer and the trainees.
 3.3 Has been reported doing 'Texas 2-Step' during majority of the training.
 3.4 Multiple 'uhm' while training in class.
 3.5 Did not move around the class instead stayed behind the computer.
 3.6 Pulled the keyboard of a specialist having a live call in order to show how it is supposed to be done.
4. Pulled a specialist on one-on-one coaching during queue calls.
5. Inconsistent review scores from the trainees.
6. Classroom management needs abrupt improvement. The class is bored due to monotonous tone of voice of the trainer, lack of interactive opportunities in the class
7. Numerous feedback from interns that they quit or wanted to quit because of lack of effectivity of the trainer. This is evident in the throughput.

While all of these allegations may be true, none of these allegations were observed by my supervisor. These were perceptions, if not hearsay, and most of these may have happened even from day 1 I handled my first class in this company.

Moreover, none of these allegations were documented, discussed, coached, reviewed, and observed for follow-up to check for improvement.

The corrective action doesn't have 'Corrective Action Required'. Instead immediately after receiving the notice, my supervisor brought me to HR Dept for another letter to receive. Within minutes of being in the HR Office, I received the Preventive Suspension Notice, suspending me for 30 days for exactly the same allegations as in the Corrective Action Notice.

In the suspension notice, it states that, 'considering the nature and gravity of the offense charged and the sensitivity of the nature of the work you are currently occupying which is a position of trust and confidence that gives you access to confidential files and documents that will be involved in the investigation, you are hereby placed under Preventive Suspension effective immediately and for a period of 30 days while this matter is being investigated.

Here are my concerns:
1. The above allegations were not documented.
2. Most of these allegations are 'opportunities' or areas of improvement that could have been observed, coached, prepared an action plan, and followed up.
3. My Supervisor did not observe me during any of my class, not even once, to be able to say I have these 'opportunities'.
4. The corrective Action was dated Dec. 8, but was served Dec. 20. There were no corrective action required to correct the mistakes, or even ask for my explanation for some of the incident or all of the allegations.
5. If these allegations were undocumented, what would be the basis of HR's investigation?
6. 30 days had passed, when I was on my way to office on the 20th of January 2015 (even without their notice to resume work) they stopped me and said that 'there is no point of coming to work since there is no investigation result yet, and that the last day of suspension is today, 20th January and not 19th January'. My concern is, i was given 30-day suspension and not 1 (one) month of suspension. if the suspension was given on the 20th of Dec, the last day would be 19th of Jan. And, that the investigation were not completed within the 30-day period. When they realized that the suspension ended 19th, they informed me verbally to report on the 21st of jan at 2:00pm to sign a document. When I get there at 2:00pm one of the HR staff, did not even know why i was there and  did not even know what document that i will be signing. The staff doesn't have any idea at all. I communicated to the HR Manager that they need to complete the investigation and advice a 'Return-To-Work' order for me to return to work.
7. I received a text message on the 28th of Jan to report back and that the investigation result and their decision is ready for me to receive. However, they said that they will not pay the days after the suspension since, as stated 'we wish to reiterate our previous directives for you to immediately return to work'.
8. I filed a complaint in NLRC in San Fernando, Pampanga about this ‘illegal suspension’. On our first hearing on 21st of Jan, the arbiter asked the company to explain in writing or present a documentation about the allegations that I should merit the suspension. However, on our 2nd hearing, the arbiter advised me to return to work and make an internal arrangement of my concern to be compensated for the days I was suspended. And if no arrangement is done, I still have the right to formally file a complaint in DOLE.
My main concern is for me to be compensated for those days I was suspended including the days after the suspension until I was advised to return to work. This is the basis of my understanding:
The purpose and nature of preventive suspension is further explained by the Supreme Court in the case of Gatbonton vs. NLRC (G.R. No. 146779, January 23, 2006), wherein it stated that:
“Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. 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 of his co-workers. However, when it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension.”

With your legal advice, I want to know how I can achieve this. I know for certain, the allegations were not documented, no proper coaching was done, no written or final written warning received. Therefore, HR’s investigation is baseless and therefore I am entitled to the payment of salaries.
I still have a lot of thing to tell in this 'saga'.To be honest, this is the first time I am in this situation, and I will not let this pass for nothing. Your help and advice will be highly appreciated. God Bless.

Aris

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19 Re: Preventive Suspension on Wed Feb 11, 2015 5:25 pm

council


Reclusion Perpetua
cjbjaj wrote:
With your legal advice, I want to know how I can achieve this. I know for certain, the allegations were not documented, no proper coaching was done, no written or final written warning received. Therefore, HR’s investigation is baseless and therefore I am entitled to the payment of salaries.
I still have a lot of thing to tell in this 'saga'.To be honest, this is the first time I am in this situation, and I will not let this pass for nothing. Your help and advice will be highly appreciated. God Bless.

Aris

Please clarify.

What was the decision of the company regarding their investigation? Were you served with the decision?

Or were you just asked to come back work and continue your work?

If there is no decision, or that you were cleared of ALL the infractions, then you are entitled to all the salaries during the PS including those of the extension period.

If there is no clear answer from the company regarding that, you can re-file your illegal suspension case.

But if you win, you might want to consider moving on to another company.

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20 Re: Preventive Suspension on Wed Feb 11, 2015 7:20 pm

Neeshia18


Arresto Menor
Hi,

My friend was placed on preventive suspension. After 3 weeks, he was reinstated and only given final written warning but HR told him that they would not compensate the 3 weeks that he was on preventive suspension. As far as I know, if an employee was under preventive suspension and was not terminated, it means he is not guilty and should be compensated for the days that he was under preventive suspension. Is this correct?

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21 Re: Preventive Suspension on Thu Feb 12, 2015 3:11 am

council


Reclusion Perpetua
Neeshia18 wrote:Hi,

My friend was placed on preventive suspension. After 3 weeks, he was reinstated and only given final written warning but HR told him that they would not compensate the 3 weeks that he was on preventive suspension. As far as I know, if an employee was under preventive suspension and was not terminated, it means he is not guilty and should be compensated for the days that he was under preventive suspension. Is this correct?

No.

He violated policies and was guilty, but not enough to be terminated.

He will only be paid for the days he was on PS if he was totally found "not guilty" of all charges.

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22 Re: Preventive Suspension on Thu Feb 12, 2015 7:41 pm

cjbjaj


Arresto Menor
council wrote:

Please clarify.

What was the decision of the company regarding their investigation?  Were you served with the decision?

Or were you just asked to come back work and continue your work?

If there is no decision, or that you were cleared of ALL the infractions, then you are entitled to all the salaries during the PS including those of the extension period.

If there is no clear answer from the company regarding that, you can re-file your illegal suspension case.

But if you win, you might want to consider moving on to another company.

Hi,

This is the notice I received 10 days after the end of PS.
"RE: Infractions stated in the 20 December 2014 Notice
After thorough investigation, while the facts and evidence on record justify a more severe penalty, the company, in the exercise of its management prerogative, has decided to show leniency and impose a lesser penalty for your infractions. However, please consider this notice as a STERN WARNING that the commission of same acts or similar offenses in the future shall merit a more severe penalty. You are also directed to take the necessary corrective measures to improve your training and coaching skills, consistent with the company's policy, rules and regulation on the matter.
Moreover, as your 30-day preventive suspension has already ended, you are required to immediately report to work thereafter. As such, we wish to reiterate our previous directives to immediately return to work."

It is obvious that the company will not pay me for those days I am on PS including the extension.

As per my knowledge, the company should investigate to prove whether I am guilty or not for those infractions. The notice i received did not state any of these. My point of not addressing those opportunities to me by my supervisor, in their notice, they directed me to take the necessary corrective measures to improve my training and coaching skills. If that is company's expectations of me as a trainer, what are their expectations from my supervisor in making sure I am supervised properly?

I am not seeking answers from these questions. Obviously, their investigation results were not specific to the infractions. I need an advice on how I can go about to be compensated for the PS including the extension. I'm thinking of preparing a letter to them first, as advised by NLRC, to make an internal arrangement. If i take that path, what would be the subject of my letter and the content?

Right now, they put me on a special project. I am now reporting directly to HR dept and not anymore to my previous supervisor. I work at home but will be paid for the same rate as before the PS.

Thanks,
Aris

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23 Re: Preventive Suspension on Thu Feb 19, 2015 6:09 pm

cjbjaj


Arresto Menor
Hi attorney
Pls reply to my recent post. Thanks
Aris

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24 Re: Preventive Suspension on Tue Sep 13, 2016 12:44 pm

river03


Arresto Mayor
Hi Sir(s),

Good afternoon.

Ask ko po sana, yung preventive suspension po ba ay sadya po bang ipinapataw sa employee:

1. sa paglabag mo sa company rules and regulations?
2. o pwede rin po ba kung hindi mo naperform and duties and responsibilites?

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25 Re: Preventive Suspension on Tue Sep 13, 2016 2:10 pm

lukekyle


Reclusion Perpetua
ang preventive suspension ay hindi parusa. Sya ay paraan ng employer para ma safeguard ang companya habang iniimbistigahan nila yung incedente na kinasangkutan mo.

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26 Re: Preventive Suspension Today at 1:58 pm

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