Changing a Notice to Explain in an Employee Disciplinary Action (Philippine Context)

Disclaimer: The following discussion is for general informational purposes only and does not constitute legal advice. For specific concerns and situations, it is best to consult a licensed legal professional.

1. Overview of the Two-Notice Rule in Philippine Labor Law

Under Philippine labor jurisprudence, disciplinary actions (up to and including termination of employment) must generally follow the concept of due process, also known as the two-notice rule. This consists of:

First Notice (Notice to Explain or NTE):
A written notice served upon the employee specifying the act(s) or omission(s) constituting the alleged infraction. It should clearly state the charges and direct the employee to submit a written explanation or attend a hearing.
Second Notice (Notice of Decision):
After the employee is given the opportunity to be heard, the employer must issue another written notice stating the employer’s findings on whether the employee is found guilty or not of the infractions and the corresponding penalty, if any.

Purpose of the Notice to Explain

Information: It informs the employee of the nature and details of the alleged offense.
Opportunity to Respond: It gives the employee a chance to prepare an explanation, gather evidence, and possibly refute the accusations or present mitigating circumstances.

Any deviation from this two-notice rule or the principles of procedural due process may render the disciplinary action or dismissal procedurally defective, although it does not necessarily absolve the employee from liability if the substantive grounds for discipline are proven.

2. Importance of Precision in the Notice to Explain

Specificity of Charges: The allegations in the Notice to Explain must be clearly stated, specifying relevant dates, events, persons involved, and the company policy or rule allegedly violated.
Employee’s Right to Proper Defense: If the charges are vague, the employee may be deprived of a fair opportunity to respond. This can be grounds for questioning the validity of any subsequent penalty.
Legal and Regulatory Guidelines: The Department of Labor and Employment (DOLE) has emphasized through various advisories and labor arbitration precedents the importance of ensuring that the first notice provides sufficient detail.

3. What Does “Changing” a Notice to Explain Mean?

Amendment of Factual Allegations:
Sometimes, after investigation begins, the employer may discover new evidence or clarify existing facts. This can prompt changes or additions to the specific violations or the particular details in the original NTE.
Amendment of the Legal/Company Policy Basis for Charges:
The original NTE might cite a specific violation under the company’s Code of Conduct, but upon further review, HR or management may decide that the correct or more precise policy provision is a different one.
Upgrading or Downgrading the Infraction:
An employer may reassess the seriousness of the infraction based on emerging facts—e.g., from a minor to a serious offense, or vice versa.

4. Reasons Employers Might Need to Change the Notice to Explain

Discovery of New Evidence:
During the preliminary or fact-finding stage, new facts or documentary evidence might emerge after the initial NTE was issued.
Correcting Errors or Omissions:
The original NTE might contain typographical errors, incorrect dates, or an incomplete description of the alleged misconduct.
Legal or Policy Reassessment:
Upon review by legal counsel or the HR department, it may be determined that the alleged violation is better classified under a different policy provision than initially stated.

5. Legal Considerations and Guidelines on Changing the Notice to Explain

Due Process Must Still Be Observed
Whether the employer simply modifies the existing NTE or issues an entirely new one, the employee’s right to procedural due process remains the same. The employee must be given:
- A clear explanation of the charges;
- Adequate time to respond to the revised or additional charges;
- The opportunity to submit evidence or testimony against the amended allegations.
Re-Issuance or Supplemental Notice
The employer typically has two options to handle changes in the original NTE:
- Issue a Revised or Amended Notice to Explain: The original NTE is withdrawn or superseded by a new NTE that consolidates both the old and new charges (or corrections).
- Issue a Supplemental Notice: A separate notice that supplements the first one, specifically explaining additional findings or corrections. This supplemental notice should reference the first NTE, clearly state the changes, and again afford the employee time to respond.
Importance of Timeline
The employer should allow the employee sufficient time to review, understand, and address the amended or new allegations. Rushing the process or failing to grant enough time might be seen as a denial of due process.
Substantive vs. Procedural Due Process
Even if the change in the NTE might not affect the employer’s underlying reason to discipline or dismiss (substantive aspect), errors in the manner of notice (procedural aspect) could still subject the employer to potential liability for illegal dismissal or procedural lapses if the employee proves that no proper hearing opportunity was provided.
Fair Play and Good Faith
Underpinning Philippine labor law is the principle that the employer-employee relationship should be governed by good faith and fair dealings. If it appears that changes to the NTE were done maliciously or strategically to disadvantage the employee or to trick them into procedural lapses, the employer may face legal repercussions.

6. Steps to Properly Change a Notice to Explain

Issue a Written Communication Explaining the Change
- Title the document “Amended Notice to Explain” or “Supplemental Notice to Explain.”
- Clearly state the reason for the amendment (e.g., discovery of new evidence, correction of the alleged violations, etc.).
- Reference the date of the original NTE and specify which parts are being changed.
Detail the Charges or Allegations Again
- Provide a clear narrative of the alleged wrongdoing.
- Specify the acts and omissions, along with the applicable sections of the company’s code of conduct or policies.
- Indicate the date, place, and persons involved as precisely as possible.
Allow the Employee to Respond
- Grant the employee ample time to respond to the amended or new charges.
- Offer or schedule a hearing or conference if necessary, especially if there is a dispute over material facts.
Serve It in the Same Manner as the Original Notice
- Ensure personal service or other documented means of delivery (e.g., registered mail) with proof of service.
- Keep copies for HR records to show that the employee was properly notified.
Conduct the Required Hearing or Meeting (if applicable)
- Even if the charges appear to remain largely unchanged, the introduction of new evidence or reclassification of the charges could warrant an additional meeting or hearing to maintain fairness.

7. Consequences of Incorrectly or Improperly Changing a Notice to Explain

Procedural Defect
If the employee is not sufficiently informed of the amended charges or not given the opportunity to respond, the disciplinary action (including termination) can be challenged as procedurally flawed.
Potential Liability for Illegal Dismissal
In cases of termination, the employer may be found liable for illegal dismissal due to non-compliance with the procedural requirements of due process—potentially leading to reinstatement, backwages, or separation pay in lieu of reinstatement, among other remedies.
Labor Complaints and Damages
The employee may file a complaint before the National Labor Relations Commission (NLRC). If the employer is found to have acted in bad faith or with malice, moral or exemplary damages could be awarded.

8. Relevant Jurisprudence and DOLE Guidelines

Landmark Labor Cases
Several Supreme Court decisions emphasize strict adherence to procedural due process. While courts can excuse minor lapses, repeated or gross violations (such as completely failing to give notice or to allow an employee to respond to new charges) are often fatal to the employer’s position.
Department Orders and Advisories
DOLE labor advisories consistently state the importance of detailed and accurate notices. They also affirm that the employee must be given a fair chance to defend themselves following changes or corrections in the charges.
Guidance from the Labor Code
The Labor Code of the Philippines (particularly Book VI) discusses security of tenure and the standards for valid dismissals—both substantive (valid cause) and procedural (due process). Any deviation must be justified and must still comply with the fundamental requirements for fairness.

9. Practical Tips and Best Practices

Draft NTEs Carefully from the Start
To avoid confusion and procedural issues, thoroughly investigate the incident before issuing the NTE, so amendments are minimal or unnecessary.
Consult the Company’s Policies
Ensure that all charges align with the relevant provisions of your company’s code of conduct or manual of regulations.
Maintain Clear Documentation
Keep a record of all notices, correspondence, receipts of service, and minutes of hearings or conferences. Good documentation is crucial if the matter escalates to the NLRC.
Afford Ample Response Periods
While the Labor Code does not specify an exact number of days, many companies observe a 48-hour to 5-day period for the employee to submit a written explanation. For complex cases, longer periods may be appropriate.
Involve Legal or HR Specialists
Especially for serious or sensitive infractions, having legal counsel or HR managers review the notices can help ensure compliance with labor laws and jurisprudence.

10. Conclusion

Changing a Notice to Explain in the Philippine employment context is permissible under certain conditions, provided that due process is strictly observed. The key is to maintain fairness and clarity: whenever the factual or legal basis for an infraction changes, the employee must be promptly informed of the revisions and be given a fair opportunity to respond.

By following the correct procedures—issuing either a revised or supplemental notice, specifying the changes, and allowing the employee sufficient time and opportunity to explain—employers can protect the integrity of their disciplinary process and uphold the principles of just and fair dealings enshrined in Philippine labor law.

Disclaimer: This article is meant for general information and educational purposes. For advice specific to your situation, consult a licensed attorney or labor relations specialist in the Philippines.