Drafting an Explanation for a Notice to Explain (NTE) in the Workplace: A Comprehensive Guide (Philippine Context)

In Philippine labor practice, a Notice to Explain (often referred to as an NTE) is a critical document that is typically issued by an employer to an employee who is alleged to have committed some form of misconduct or violation of company policy. The NTE is a key element of procedural due process—an employer’s legal obligation to hear an employee’s side before any disciplinary sanction is imposed. Below is an in-depth discussion of everything you need to know about drafting an explanation in response to an NTE, with an emphasis on the legal framework in the Philippines.

1. Legal Foundations of the Notice to Explain

1.1. Constitutional and Labor Code Basis

Constitutional Right to Due Process
Article III of the 1987 Philippine Constitution guarantees that no person shall be deprived of life, liberty, or property without due process of law. While this is framed broadly, it underpins the principle that employees—whose employment is their source of livelihood—must be afforded an opportunity to be heard before losing that livelihood or facing serious disciplinary sanctions.
Labor Code and Omnibus Rules
Under Philippine labor laws, particularly Book VI, Rule I, Section 2 of the Omnibus Rules Implementing the Labor Code, due process in employment is explained in more detail. The Supreme Court has also repeatedly emphasized that any disciplinary action, especially dismissal, must meet both substantive due process (i.e., there is a valid cause) and procedural due process (i.e., fairness in the manner the cause is ascertained).

1.2. The Two-Notice Rule

The “Two-Notice Rule” in Philippine labor law is one of the most frequently cited guidelines when dealing with employee discipline:

First Notice: Notice to Explain – This is the written notice specifying the charges or allegations against the employee, the details of the incident(s), and the rule or policy allegedly violated. The employee is given a chance to explain or defend themselves, usually through a written explanation and/or a hearing.
Second Notice: Notice of Decision – After the employee responds, and the employer evaluates all explanations and evidence, a second notice is issued. This notice details the employer’s decision, which can range from exoneration to suspension to dismissal, depending on the findings.

The NTE and the entire process aim to ensure that the employee is aware of the charges against them and is allowed to present their side prior to the imposition of any penalty.

2. Purpose and Importance of the NTE

The NTE is not just a procedural requirement—it protects the rights of both parties:

For the Employee:
- Ensures the employee is informed of the allegations.
- Provides an opportunity to present a defense or clarification.
- Minimizes the risk of an unjust or arbitrary penalty.
For the Employer:
- Demonstrates compliance with procedural due process.
- Helps establish a proper record of the alleged infraction and subsequent disciplinary procedure.
- Reduces legal exposure by ensuring fairness before any disciplinary action is taken.

Failure to issue an NTE or to allow an employee to explain could lead to a finding of illegal dismissal or violation of due process, resulting in potential liability for the employer.

3. Common Grounds for Issuing an NTE

An NTE can be triggered by a variety of alleged infractions. Common examples include:

Violation of Company Policies: Tardiness, absenteeism without leave, improper attire, or breach of specific workplace rules.
Misconduct: Acts of insubordination, theft, dishonesty, or physical/verbal harassment in the workplace.
Negligence or Poor Performance: Consistent failure to meet performance standards or carelessness that affects company operations.
Conflict of Interest: Engagement in activities that compromise the employee’s duties to the company.

Regardless of the nature of the alleged wrongdoing, the due process requirement remains the same.

4. Responding to the NTE: Key Considerations

When drafting an explanation in response to an NTE, an employee should keep in mind the following:

Timeliness
The NTE usually specifies a deadline for submission of the written explanation. Employees should respond within the stipulated period to avoid waiving their right to be heard.
Clarity and Conciseness
The explanation should be written in clear, concise language. Organize the facts chronologically and address each allegation systematically.
Accuracy of Details
Provide specific information, such as dates, times, and persons involved, where relevant. Consistency in details is crucial for credibility.
Supporting Documents
If applicable, attach documentary evidence (e.g., emails, memos, attendance records, or witness statements) that can substantiate the employee’s position.
Respectful Tone
Demonstrate professionalism and respect, even if contesting the allegations. Avoid inflammatory language.
Legal Representation
For serious charges or when the potential penalty is severe (e.g., dismissal), an employee may consider seeking legal advice or representation, especially if the matter escalates to administrative hearings or labor arbitration.

5. Step-by-Step Guide to Drafting the Explanation

Below is a suggested format to help employees organize their response:

Heading and Salutation
- Begin with a formal heading, addressed to the person or committee specified in the NTE (e.g., Human Resources Department, Disciplinary Committee, or the issuing officer).
Introduction
- Mention the date of the NTE and acknowledge receipt.
- State your purpose clearly: to respond or explain the circumstances surrounding the alleged violation.
Statement of Facts
- Present your understanding of the events.
- Use a chronological order and include relevant dates, locations, and individuals involved.
- Keep the narrative factual and avoid unnecessary details.
Explanation or Defense
- Address each allegation in the NTE point by point.
- If you deny certain allegations, clarify why. If you admit them, explain mitigating circumstances.
- Attach supporting documents or evidence where relevant.
Mitigating or Exonerating Circumstances
- State any factors that may reduce your degree of responsibility (e.g., misunderstandings, prior lack of warnings, medical issues, emergency situations).
- Highlight your good faith or previous positive record.
Expression of Cooperation
- Convey your willingness to attend any administrative hearing or to provide additional clarification as needed.
- Emphasize respect for company policies and procedures.
Conclusion
- Summarize your main points briefly.
- Thank the employer for the opportunity to explain and reiterate your commitment to resolving the matter professionally.
Signature and Date
- Close with a polite valediction (e.g., “Sincerely,”).
- Sign and date the letter, and keep a copy for your records.

6. Potential Outcomes After Submission

Further Investigation or Hearing
The employer may conduct an administrative hearing or further investigation to verify the facts. Attendance and cooperation in any scheduled hearing are important.
Possible Sanctions
Depending on the findings, the employer may opt to impose sanctions, ranging from a written reprimand or suspension to termination for just cause. It is in the employee’s best interest to fully participate and defend themselves if they believe the allegations are incorrect or exaggerated.
Exoneration
If the evidence shows that the employee is not at fault, the employer should formally clear the employee and close the matter.
Appeals or Remedies
If the employee believes the employer’s decision is unjust or unsupported by evidence, they may seek recourse through the company’s grievance machinery, or eventually through labor arbitration at the National Labor Relations Commission (NLRC).

7. Consequences of Not Responding

Failing or refusing to respond to an NTE can be detrimental to the employee’s position. By default, an employer may conclude that the employee has waived the right to explain. This can weaken any defense if the case escalates to the NLRC or the courts later. At the same time, failing to respond deprives the employer of potential clarifications that could have been provided.

8. Practical Tips and Best Practices

Stay Professional
Treat the matter seriously and maintain decorum in all communications.
Keep Records
Retain copies of the NTE, your written explanation, and any other relevant documents.
Respect Deadlines
Ensure you submit your written explanation within the timeframe specified in the NTE to avoid waiving your right.
Seek Guidance When in Doubt
For complex or high-stakes allegations, consult a lawyer or a trusted professional with expertise in labor law.
Honesty is Key
While defending yourself is important, presenting false information or tampering with evidence can have serious consequences.

9. Common Mistakes to Avoid

Ignoring the NTE
Silence may be interpreted as admission or non-contestation of the charges.
Admitting Guilt without Understanding the Allegation
Read and understand each charge carefully before responding.
Being Vague or Emotional
Stick to objective details; unsupported claims or emotional outbursts can be counterproductive.
Missing Attachments
If you mention documents that support your case, ensure they are properly included and labeled.
Responding Late
Failing to submit on time could be taken as a forfeiture of your right to due process at the company level.

10. Frequently Asked Questions

Is an NTE only for major offenses?
Not necessarily. An NTE can be issued for any alleged violation of company rules, whether minor or major. It is part of the employer’s procedure in ensuring due process.
Can I request a face-to-face meeting instead of submitting a written explanation?
Some employers allow an administrative hearing or meeting, but they will still likely require a written submission so there is a documented record.
What if I need more time to prepare my response?
You can request an extension from your employer, explaining why additional time is necessary. Approval is at the employer’s discretion, but demonstrating good faith often helps.
How detailed should my explanation be?
It should be sufficiently detailed to address each allegation specifically. More serious allegations may warrant lengthier explanations and documentary support.
What happens if I cannot find evidence to support my defense?
If you genuinely have no documentary or witness evidence, at least provide a truthful and detailed narrative of what transpired. Good faith and consistency in your statements can still be persuasive.

11. Conclusion and Disclaimer

Drafting an explanation to a Notice to Explain in the Philippine workplace context is a vital step in safeguarding one’s right to due process. A clear, well-structured, and evidence-based response can significantly affect the outcome of any disciplinary action. Employers, on their part, must ensure that the process remains fair and transparent, adhering to labor laws and jurisprudential guidelines.

Disclaimer: This article is for general informational purposes only and does not constitute legal advice. For specific issues, particularly those that may lead to severe penalties like termination, it is best to consult a qualified labor lawyer or a representative familiar with Philippine labor law.

In essence, understanding and effectively responding to an NTE not only protects employees’ rights but also fosters a culture of fairness and accountability in the workplace.