Employee Rights: Responding to a Notice to Explain (NTE)

Employee Rights: Responding to a Notice to Explain (NTE) in the Philippine Context

In the Philippines, the rights and obligations of both employers and employees in disciplinary proceedings are governed largely by the Labor Code of the Philippines and jurisprudential rulings by the Supreme Court. The issuance of a Notice to Explain (NTE) is central to the “due process” requirement in employee discipline and dismissal cases. Below is a comprehensive discussion of the key points every employee should know about NTEs, the legal basis, and how to properly respond to them.

1. Legal Basis and Overview

1.1. Constitutional and Statutory Basis

  • Constitutional Right to Due Process
    The Philippine Constitution guarantees the protection of labor and provides that no person shall be deprived of life, liberty, or property without due process of law. In the employment context, due process is particularly relevant when an employer contemplates dismissal or imposes disciplinary sanctions on an employee.

  • Labor Code of the Philippines
    The Labor Code (Presidential Decree No. 442, as amended) provides specific procedures and standards for lawful dismissal. The “two-notice rule” (also known as the Twin-Notice Rule) is a foundational aspect of due process, consisting of:

    1. The First Notice (NTE) – detailing the specific acts or omissions complained of, giving the employee an opportunity to explain or defend themselves.
    2. The Second Notice – issued only after the employer has evaluated the employee’s explanation and decided on the proper disciplinary measure or penalty.

1.2. Scope of Application

  • The NTE process applies to all types of employees—regular, probationary, project-based, fixed-term, and even contractual employees—when the employer contemplates disciplinary action or termination for a just cause.
  • It is crucial in cases where serious infractions are alleged, such as serious misconduct, willful disobedience, gross and habitual neglect of duty, fraud, or other analogous causes.

2. The Purpose and Importance of the Notice to Explain

  1. Informing the Employee of the Charges
    The NTE clearly states the nature of the violation or misconduct. This ensures the employee understands the accusation and the specific company policies or legal provisions potentially violated.

  2. Safeguarding Employee Rights
    This notice gives the employee a chance to respond, present evidence, or clarify misunderstandings—fulfilling the requirement of procedural due process.

  3. Preserving the Employer’s Compliance with Labor Standards
    By issuing an NTE, an employer demonstrates adherence to lawful disciplinary processes. Failure to issue an NTE can expose the employer to potential legal risks, including illegal dismissal lawsuits.

3. Contents and Form of the NTE

While there is no rigid legal template for an NTE, the Department of Labor and Employment (DOLE) and Philippine jurisprudence provide guidelines on what it should contain:

  1. Clear Statement of Facts and Allegations

    • Date, time, and location of the alleged incident(s)
    • Specific description of the act(s) or omission(s) alleged to be misconduct or violation

  2. Reference to Company Policies or Relevant Laws

    • The NTE should cite the company code of conduct, manual of regulations, or specific provisions of the Labor Code or Civil Code if the offense is rooted in law.

  3. Deadline for Submission of Explanation

    • An employer should give a reasonable period (commonly 48 to 72 hours or more, depending on company policy) for the employee to respond.

  4. Instructions on How to Submit the Explanation

    • Whether it should be in writing, to whom it should be submitted, and what supporting documents may be attached.

  5. Possible Consequences

    • A fair warning that disciplinary action (ranging from reprimand to dismissal) may be taken depending on the results of the investigation.

4. Employee Rights When Receiving an NTE

  1. Right to Be Informed of the Allegations

    • The employee must be notified in a language or manner easily understood by them.

  2. Right to Reasonable Time to Respond

    • Jurisprudence generally requires that employees be given ample time to review the charges, gather evidence, and craft a reply.

  3. Right to Defend Oneself or Request a Hearing

    • Employees have the right to submit a written explanation.
    • They can also request a hearing or conference to present witnesses, cross-examine the employer’s witnesses (if any), or clarify issues.

  4. Right to Counsel or Representation

    • In especially complex cases or cases that can lead to termination, employees may choose to obtain legal counsel or be represented by a union or a personal representative to protect their interests.

  5. Right Against Retaliation

    • Employers are prohibited from penalizing employees simply for defending themselves or invoking their rights. Any form of retaliation or harassment can be grounds for legal action.

5. How to Properly Respond to an NTE

  1. Read and Understand the Allegations Thoroughly

    • Pay close attention to the date, time, and alleged misconduct or violation.
    • Identify the company rules, regulations, or legal provisions cited.

  2. Gather Evidence

    • Compile documents, messages, emails, logs, witness statements, or any proof that may refute the allegations or explain your actions.

  3. Draft a Clear, Concise, and Respectful Reply

    • Use formal language.
    • Address each point raised in the NTE systematically.
    • Cite facts, dates, relevant company policies, and/or laws where necessary.

  4. Attach Supporting Documentation

    • Include any records that can help clarify your side.
    • Make sure all attachments are complete and referenced in the letter.

  5. Submit Your Explanation on Time

    • Follow the deadline or request an extension if absolutely necessary, stating clear grounds (e.g., inability to access documents on time).
    • Keep proof of submission (e.g., copy of the letter duly stamped/received by HR or a reputable means of delivery if done electronically).

  6. Request a Hearing or Conference if Needed

    • If the allegations are complex or the evidence is conflicting, request a face-to-face or virtual meeting to explain further, ask questions, or present witness testimony.

  7. Consult with a Lawyer or Union Representative

    • For cases carrying the risk of termination or if the allegations are particularly grave, seeking legal advice or union assistance is advisable to ensure proper representation.

6. Possible Outcomes After Responding to an NTE

  1. Dismissal of the Charges

    • If the employer finds the explanation satisfactory or the evidence insufficient, they may drop the matter entirely.

  2. Issuance of a Corrective or Disciplinary Measure

    • If the misconduct is proven but not grave, the employer might issue a written warning, suspension, or other sanction short of dismissal.

  3. Termination of Employment

    • If the misconduct is serious and clearly proven (e.g., fraud, serious misconduct, willful breach of trust), the employer can proceed to terminate. This must be done via a Second Notice, stating the grounds and the date of effectivity of the termination.

  4. Administrative Proceedings or Legal Action

    • In instances involving violation of laws (e.g., theft, criminal fraud), the employer may also initiate legal or administrative complaints.

7. The Two-Notice Rule and the Right to be Heard

  • First Notice (NTE): Gives the employee the opportunity to explain.
  • Second Notice: Communicated after carefully evaluating the employee’s explanation. It must state the employer’s decision on the appropriate penalty or disciplinary measure.

The employee must also be given the “right to be heard”—through a written explanation or, in some cases, a hearing or conference. Failure of the employer to abide by these steps can amount to procedural lapses which may render the dismissal illegal even if there is a valid ground.

8. Remedies for Employees in Case of Violation

  1. Filing a Complaint for Illegal Dismissal or Unfair Labor Practice

    • If the employee believes that the employer violated due process or discriminated against them, they may file a complaint with the Department of Labor and Employment (DOLE) or the National Labor Relations Commission (NLRC).

  2. Reinstatement and Back Wages

    • If the dismissal is found to be illegal, the employee may be entitled to reinstatement to their former position without loss of seniority rights, plus payment of full back wages from the time of dismissal until reinstatement.

  3. Monetary Awards for Damages and Attorney’s Fees

    • Depending on the case, the employee may also be awarded moral and/or exemplary damages, as well as attorney’s fees, if there is a showing of bad faith or malice on the part of the employer.

9. Best Practices for Employees

  1. Stay Professional and Objective

    • Even if the NTE seems unfair, maintain a respectful and factual tone in responses.

  2. Document Everything

    • Keep copies of the NTE, your explanation, email correspondences, text messages, and any other relevant materials.

  3. Ask Questions

    • If you are unsure about the details of the allegations, the policy basis, or the timeline, clarify with HR or management.

  4. Seek Guidance

    • If you are unionized, inform your union representative. If you are not, consider consulting a lawyer if serious sanctions (like dismissal) are involved.

  5. Follow Company Procedures

    • Submit everything within the set deadlines and keep records to show compliance with the process.

10. Conclusion

Responding to a Notice to Explain (NTE) is a critical step for employees facing disciplinary proceedings in the Philippines. The process upholds the constitutional and statutory mandate of due process, ensuring that any sanction—especially dismissal—only follows a fair and thorough investigation. By understanding their rights to be informed, to be heard, to counsel or representation, and to a fair investigation, employees can effectively protect themselves against unfounded accusations or unjust penalties.

Employers, on the other hand, are obliged to comply with the twin-notice and hearing requirements to avoid potential liabilities. Awareness of these rules fosters a transparent, fair, and just working environment for all parties.

Employees who find themselves in such situations should remember to:

  • Thoroughly review the allegations.
  • Gather relevant evidence.
  • Draft a coherent and evidence-based response.
  • Observe deadlines and maintain professionalism.

Ultimately, an NTE is not an automatic penalty but the start of a procedure that must respect both employer and employee rights under Philippine labor law. Properly engaging with the process helps ensure due process is upheld, reduces misunderstandings, and fosters better labor-management relations.

Disclaimer: This content is not legal advice and may involve AI assistance. Information may be inaccurate.

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