Dear Attorney,

Good day!

I hope this message finds you well. I am reaching out to request your expert advice on a particular matter concerning the issuance of a notice to explain (NTE) to employees. Specifically, I would like to know if it is permissible under Philippine labor laws to give an employee only 24 hours or 2 days to respond to an NTE.

The organization I am part of is in the process of implementing its disciplinary procedures, and we want to ensure that our policies comply with legal standards, particularly when it comes to due process in handling disciplinary actions. I would greatly appreciate your legal insight on this issue, including any risks or potential liabilities we might face if we set short deadlines for employees to respond.

Thank you for your assistance. I look forward to your response.

Sincerely,
An HR Professional

Exploring the Legal Parameters of "Notice to Explain" Periods under Philippine Labor Law

The issuance of a notice to explain (NTE) to employees forms part of the procedural due process that employers must observe when administering disciplinary measures in the Philippines. The question raised—whether an employee can be given only 24 hours or 2 days to respond to an NTE—invokes key issues regarding fairness, due process, and the proper balance between the employer's right to discipline and the employee’s right to defend themselves.

This legal article seeks to provide a comprehensive analysis of the rules and principles governing the timing and implementation of NTEs under Philippine labor law, while also addressing potential risks associated with imposing brief deadlines on employees for their responses.

The Concept of Procedural Due Process in Philippine Labor Law

Under Philippine labor law, particularly as enshrined in the Labor Code of the Philippines and interpreted by jurisprudence, procedural due process is a fundamental right afforded to employees. Procedural due process essentially refers to the manner or steps that must be followed before an employee can be lawfully disciplined or terminated. This concept was designed to ensure that employees are treated fairly and are given the opportunity to present their side in disciplinary matters.

In cases of termination or disciplinary action for just causes, the Supreme Court of the Philippines has consistently upheld the requirement for a two-notice rule. This rule was emphasized in landmark cases such as Wenphil Corp. v. NLRC (G.R. No. 80587, February 8, 1989) and further clarified in Perez v. Philippine Telegraph and Telephone Co. (G.R. No. 152048, April 7, 2009). The two-notice rule mandates that:

First Notice (Notice to Explain): The first notice is issued to inform the employee of the specific act or omission they are being charged with, thus giving them the opportunity to explain or defend themselves.
Second Notice (Notice of Decision): After the employee submits their explanation and the employer conducts an investigation, the second notice informs the employee of the employer’s decision regarding the charges.

The Notice to Explain is central to the issue being examined. While the law is clear on the requirement of the first notice, it does not explicitly state the number of days an employer should give the employee to respond. However, the fundamental principles of fairness and reasonableness inherent in due process dictate that the employee must be given adequate time to craft a meaningful response.

Guidance on Setting Deadlines for a Notice to Explain

While the law does not strictly prescribe the amount of time that should be afforded to an employee to respond to an NTE, jurisprudence provides valuable guidance. As mentioned, due process is rooted in fairness. Therefore, the timing of the NTE response period must be reasonable in relation to the circumstances of the case.

In administrative or disciplinary proceedings, reasonableness is the key standard. Employers must ensure that employees are given sufficient time to:

Understand the charges leveled against them.
Gather any relevant documents or evidence in their defense.
Seek counsel or legal advice, if necessary.
Submit a comprehensive and well-considered explanation.

A 24-hour or 2-day response period may be deemed insufficient, particularly if the charges against the employee are complex, or if gathering evidence and preparing a defense would reasonably require more time.

The Supreme Court has affirmed that due process is flexible and should be adapted to the circumstances of each case. In simpler cases involving easily ascertainable facts (e.g., tardiness or absenteeism), a short deadline like 2 days may be acceptable. However, for more complicated cases involving fraud, theft, or other offenses that might require the employee to prepare a more detailed defense, a longer response time may be necessary.

Thus, while an employer may impose deadlines for NTE responses, those deadlines must meet the test of reasonableness. An unreasonably short period may be interpreted as a violation of due process, potentially invalidating any disciplinary actions based on the employee's failure to respond adequately.

Risks and Liabilities of Inadequate Notice Periods

Employers should carefully weigh the risks of enforcing short response times for NTEs. The failure to provide sufficient time could expose the employer to the following legal risks:

Violation of Procedural Due Process: As previously discussed, the failure to provide an adequate period for an employee to respond could be deemed a violation of the procedural aspect of due process. This could lead to any subsequent disciplinary actions being nullified by the labor courts.
Potential Awards for Unjust Dismissal: In cases of termination, if the employer is found to have violated procedural due process, the employee may be entitled to nominal damages. While the termination may be upheld if there is a valid cause, the lack of adherence to procedural requirements can result in a monetary award for the violation of due process.
Labor Complaints and Litigation: If an employee believes that they were not given a fair opportunity to explain their side, they may file a complaint with the National Labor Relations Commission (NLRC) for illegal dismissal or unfair labor practice. Such cases could subject the employer to lengthy and costly litigation.

Best Practices for Implementing NTE Response Periods

In light of the risks and legal standards discussed, employers should adopt best practices when setting deadlines for NTE responses. The following guidelines can help ensure compliance with due process requirements while also safeguarding the company’s interests:

Consider the Nature of the Offense: Tailor the response period to the complexity of the offense. For minor offenses with clear-cut facts (e.g., habitual tardiness), a shorter response time of 2 to 3 days may be reasonable. For more serious or complex offenses, consider allowing 5 to 7 days for the employee to respond.
Allow Flexibility: While setting a general deadline is advisable, employers should remain flexible in extending the response period if the employee requests more time for a valid reason (e.g., the need to consult with a lawyer or gather documents).
Communicate Clearly: Ensure that the NTE is clear and specific regarding the allegations, and explicitly state the deadline for the employee’s response. The employee should be made aware that failure to respond within the given period could result in the employer proceeding with disciplinary action.
Document Everything: Keep a record of the NTE, the employee’s response (or lack thereof), and any extensions granted. Documentation is crucial in case the disciplinary action is later challenged before the NLRC or the courts.

Balancing Employer Rights and Employee Due Process

Employers have the right to enforce disciplinary measures to maintain order and productivity in the workplace. However, this right must always be balanced with the employee’s right to procedural due process. Philippine labor laws, as interpreted by the courts, require that employees be given the opportunity to defend themselves before any disciplinary action is taken.

Thus, setting a 24-hour or 2-day deadline for an employee to respond to an NTE might be reasonable in cases of minor infractions, but it would likely be seen as insufficient in more complex situations. Employers should always aim to meet the standard of "reasonableness" to ensure that they are not infringing upon the employee's rights while still maintaining their authority to discipline for just cause.

In conclusion, the 24-hour or 2-day notice period for NTE responses should be used cautiously and only in cases where the facts are simple, and the response required is straightforward. Employers must ensure that they are acting in accordance with both the letter and the spirit of Philippine labor law by providing employees with adequate time to respond, thereby upholding due process and avoiding potential legal repercussions.