Employee Response to Employer Notice to Explain in the Philippines: A Comprehensive Legal Overview

In Philippine labor law, the concept of due process is central to disciplinary proceedings and eventual termination. Whether the alleged infraction is minor or serious, Philippine law—rooted in the 1987 Constitution and the Labor Code—mandates that employers observe procedural fairness. One key procedural requirement is the issuance of a Notice to Explain (NTE) by the employer and the corresponding right (and obligation) of the employee to respond. Below is an extensive discussion covering all critical aspects of an Employee Response to an Employer’s Notice to Explain in the Philippines.

1. Legal Foundations

1.1. The Constitution

1987 Philippine Constitution, Article XIII, Section 3
This provision underscores the State’s duty to protect the rights of workers and promote social justice in all phases of national development. Although it does not spell out the specifics of due process in labor cases, it lays the bedrock principle of fairness and the protection of workers’ rights.

1.2. Labor Code of the Philippines

Labor Code of the Philippines (Presidential Decree No. 442, as amended)
The Labor Code sets forth the basic guidelines for employer-employee relations, including the standards for valid termination (either for just causes or authorized causes) and the corresponding procedural requirements.

1.3. DOLE Issuances and Department Orders

Department Order (D.O.) No. 147-15
Issued by the Department of Labor and Employment (DOLE), this order clarifies the requirements for due process in termination and disciplinary procedures. It reiterates the Twin Notice Rule and emphasizes the importance of giving the employee a reasonable opportunity to be heard.

1.4. Supreme Court Jurisprudence

Various rulings by the Philippine Supreme Court highlight and refine how notice and hearing (or opportunity to explain) must be conducted. Key points from jurisprudence include:

The “Two-Notice Rule” in dismissals for just causes (1) Notice to Explain specifying the grounds, and (2) Notice of Decision (or Termination) after the employee has been given a chance to respond.
The necessity for substantial compliance with procedural due process, meaning the employer must provide clear, adequate, and specific charges, as well as a real opportunity to respond.

2. The Notice to Explain (NTE)

2.1. Definition and Purpose

The Notice to Explain is the first written notice that details the specific charges or allegations against an employee.
It informs the employee of the acts or omissions allegedly constituting a violation of company rules, regulations, or the Labor Code.
Its chief purpose is to allow the employee to understand the accusation(s) clearly and to prepare an appropriate defense or explanation.

2.2. Contents of the NTE

Specific Allegations: The NTE should clearly state the alleged infraction (e.g., tardiness, insubordination, misconduct, or other just causes).
Reference to Company Policy or Rules: Where applicable, the NTE must cite the specific company rule or policy violated.
Evidence or Basis: While not always comprehensive, the NTE should generally include or refer to available evidence (documents, witnesses, etc.) that form the basis of the charge.
Period to Respond: The NTE must specify a reasonable time—commonly 5 calendar days—to submit a written explanation.

3. The Employee’s Right (and Obligation) to Respond

3.1. Importance of the Response

The Employee Response is the second crucial step in the disciplinary process.
It is an opportunity for the employee to:
- Admit or deny the allegations,
- Provide mitigating circumstances,
- Present evidence or witnesses,
- Show that the charges have no factual or legal basis.

3.2. Format and Substance of the Response

Written Format
The employee’s explanation is typically in writing. Some employers allow digital submissions (email, company portal), but a signed hard copy is often preferred to ensure authenticity.
Detail and Clarity
The response should address the allegations point by point. The employee should detail any defenses or justifications and, if possible, cite any supporting evidence (e.g., time records, emails, testimonies).
Professional Tone
Even if the employee believes the accusations are unfounded or malicious, it is vital to maintain a respectful and objective tone. Hostility or emotional responses can undermine credibility.

3.3. Timeframe for Submission

Philippine labor practices typically give employees 5 calendar days from receipt of the Notice to Explain to submit their response.
Employers may extend this period if the circumstances warrant (e.g., employee’s need to gather evidence or if the employee is on leave).

3.4. Failure to Respond

If the employee, without valid reason, chooses not to submit a response, the employer may proceed with the disciplinary process (potentially up to termination).
A failure to respond can weaken an employee’s position if the matter escalates to a labor case since the employee forfeited the right to present a defense at the appropriate time.

4. Rights and Best Practices for Employees When Responding

4.1. Seek Clarification

If the Notice to Explain is vague, the employee may write to the employer requesting clarity on the charges or the evidence. Clear details allow the employee to submit a meaningful explanation.

4.2. Obtain Assistance

Employees have the right to seek legal counsel or assistance from a union representative (if unionized).
In some workplaces, the employee is allowed to consult a colleague or a union leader to understand the disciplinary rules better and draft an effective response.

4.3. Collect and Preserve Evidence

Employees should gather relevant documents or proof (e.g., company memos, emails, CCTV footage, etc.).
If witnesses can attest to the employee’s version of events, the employee should secure sworn statements or at least note these witnesses in the written response.

4.4. Keep Records

Employees should keep personal copies of the following:
- The original Notice to Explain,
- Their written response,
- Any appended evidence,
- Proof of submission (e.g., receiving copy with date stamp).

5. Employer’s Evaluation After the Response

5.1. Opportunity to Be Heard

In some cases, after receiving the employee’s written explanation, the employer may conduct a clarificatory hearing or “administrative hearing” especially if the case involves serious offenses or complex evidence.

5.2. Determination of Liability

The employer’s management or a designated committee reviews the employee’s response (and evidence, if any).
They evaluate whether the allegations are substantiated and whether the explanation is sufficient to absolve or mitigate liability.

5.3. The Second Notice (Notice of Decision)

If, after evaluation, the employer decides that there are grounds for disciplinary action or termination, the employer must issue a second written notice (often called a Notice of Decision or Notice of Termination).
The second notice must clearly state the factual and legal basis for the employer’s decision.

6. Common Mistakes and Pitfalls

Ignoring the NTE
Some employees make the mistake of not responding at all, believing it will simply “go away.” This inaction can be detrimental to the employee’s defense and may be deemed a waiver of the right to explain.
Providing a Generic or Non-Responsive Explanation
A response that does not address the specific allegations is unlikely to help. A direct, point-by-point refutation or explanation is essential.
Emotional Outbursts
A response laced with insults or threats can undermine the employee’s credibility and may even constitute a new offense (insubordination or disrespect).
Late Submission
Submitting the explanation past the indicated deadline without prior coordination or extension request can lead the employer to disregard the response.

7. Consequences of Non-Compliance with Due Process

7.1. For Employers

Legal and Financial Liability: If an employer terminates an employee without observing procedural due process (including the NTE and the chance to respond), the employer may be held liable for legal damages or forced reinstatement under labor arbitral bodies (Labor Arbiters, NLRC).
Administrative Sanctions: Repeated due process violations may also subject the employer to administrative sanctions if discovered by DOLE.

7.2. For Employees

Waiver of Defense: Failure to respond or to submit relevant evidence can lead to an unfavorable judgment internally, and in subsequent labor disputes, the employee may be seen as having abandoned their defense.
Potential Valid Termination: If the employee indeed committed a just cause offense and fails to refute or mitigate the charge, the employer’s decision to impose disciplinary action (up to dismissal) may stand uncontested.

8. Practical Tips for Employers

Clarity and Specificity in the NTE
The Notice to Explain should be detailed enough for the employee to fully understand the charge(s).
Reasonable Period for Response
The standard practice is to give at least 5 calendar days. Extensions should be considered upon valid request.
Fair Evaluation
After receiving the employee’s response, conduct a thorough and impartial evaluation. If needed, hold a face-to-face hearing.
Maintain Documentation
Keep all notices, responses, minutes of hearings, and documentary evidence on file for any future labor disputes.

9. Practical Tips for Employees

Read the NTE Thoroughly
Understand the nature of the accusations and the consequences.
Consult with a Representative (If Available)
If you are part of a union, seek their guidance. Otherwise, a lawyer or a trusted colleague can help.
Gather Evidence Quickly
Make sure you collect relevant documents or proof before submitting your explanation.
Stay Professional
A clear, factual response is more persuasive than an emotional one.
Preserve Copies
Keep all letters, emails, and proof of submission for reference if a labor dispute arises later.

10. Frequently Asked Questions (FAQs)

How long should an employee be given to respond to the NTE?
Typically, 5 calendar days is considered reasonable. Employers can extend this for valid reasons.
What if the employee is absent or on leave when the NTE is issued?
The employer should make a good-faith effort to serve the NTE (e.g., sending a copy to the employee’s home address or email). The counting of days generally starts upon the employee’s receipt.
Is a written explanation enough, or must there be a hearing?
A hearing is not always mandatory. However, if the matter is complex or if the employee requests one, employers should provide a chance to be heard. The key is that the employee is given a real opportunity to explain.
Can an employee ignore the NTE?
Legally, yes, but it is highly inadvisable because it can be seen as a waiver of the employee’s right to defend themselves, strengthening the employer’s case for disciplinary action.
What if the NTE contains broad or ambiguous accusations?
The employee may request in writing that the employer clarify or specify the charges and the evidence used as basis for the allegations.

11. Conclusion

In the Philippine labor context, due process is not merely a formality; it is a fundamental right accorded to employees under the Constitution, the Labor Code, and DOLE regulations. The Notice to Explain (NTE) and the corresponding employee response are cornerstone components of this due process. By providing employees with a clear statement of the alleged infraction and a reasonable chance to respond in writing (and, where necessary, in a hearing), employers uphold fairness and comply with legal standards.

For employees, responding thoughtfully and thoroughly to an NTE is critical. It is an opportunity to clarify misunderstandings, present defenses, and protect one’s rights. Whether the charges are minor or severe, the employee’s active participation in this stage of the disciplinary process can significantly influence the final outcome, both in the workplace and in any future labor dispute.

Disclaimer: This article is for general informational purposes only and should not be construed as legal advice. Specific cases may vary depending on the facts and circumstances, and the applicable laws and regulations may change over time. For legal advice concerning any particular situation, consult a licensed attorney in the Philippines or contact the Department of Labor and Employment (DOLE) for guidance.