[Letter from the Concerned Employee]
Dear Attorney,
I hope you can help me clarify a matter regarding the computation of the five-day period given to me by my employer to submit a written explanation following a Notice to Explain (NTE). I was issued the NTE on October 22 (a Tuesday), and I was informed that I had five days to respond. My question is: should I count weekends as part of this five-day period? Specifically, would the fifth day fall on October 26 (Saturday) or October 27 (Sunday)? I am not certain if the reckoning of the response period includes these non-working days or if there is a recognized standard for computing such deadlines under Philippine labor law, company rules, or the prevailing practice.
I am concerned about protecting my rights and ensuring that I do not miss the allowable timeframe. Any guidance you can provide, including reference to relevant laws, regulations, or jurisprudence, would be greatly appreciated. I want to be absolutely certain of how the deadline is computed so I can submit my written explanation in a timely and proper manner.
Thank you for your kind assistance.
Respectfully yours,
A Concerned Employee
A Comprehensive Legal Discussion on the Computation of Response Periods for Notices to Explain Under Philippine Labor Law
In the Philippine labor law context, the issuance of a Notice to Explain (NTE) is an integral part of the due process requirement before any disciplinary action, such as suspension or termination, can be validly imposed upon an employee. This procedural safeguard ensures that the employee is given a fair and reasonable opportunity to present their side in relation to alleged offenses or violations of company policies. The manner of computing the period within which the employee must respond to the NTE is not explicitly codified in a single statutory provision, but it is guided by a combination of statutes, regulations issued by the Department of Labor and Employment (DOLE), jurisprudence from the Supreme Court, and commonly accepted principles of due process and fair play.
1. The Purpose of the NTE and the Response Period
A Notice to Explain serves the purpose of informing the employee of the specific acts or omissions that allegedly constitute a violation of company rules, policies, or lawful orders, or that may be tantamount to serious misconduct, neglect of duties, or other just causes as recognized under Articles 297 and 299 (formerly Articles 282 and 284) of the Labor Code of the Philippines. Before an employer can lawfully impose disciplinary measures, especially termination, the employee must be given:
- A written notice specifying the ground(s) for disciplinary action;
- A reasonable opportunity to respond and defend themselves; and
- A written notice of decision explaining the sanction, if any.
The "reasonable opportunity" to be heard and to explain one’s side is critical. While the Labor Code itself does not strictly define the length of time considered “reasonable,” numerous labor issuances and cases have emphasized that the period granted should be fair and sufficient for the employee to prepare an adequate defense. In practice, many employers and legal advisors consider five (5) calendar days as a standard time frame, derived from various DOLE guidelines and best practices.
2. Legal Bases for the Five-Day Response Period
Although no single statutory provision uniformly mandates a five-day period, its origin can be traced from DOLE Department Order No. 147-15, series of 2015, which provides guidelines on the conduct of termination procedures. Under these guidelines, five (5) calendar days is often seen as a benchmark for a reasonable response period. Further, jurisprudence has recognized that a five-day period is generally acceptable and fair, providing enough time to allow the employee to gather evidence, consult representatives or counsel, and formulate a proper reply.
3. Counting Calendar Days vs. Working Days
A key issue that arises is whether the response period should be computed in calendar days or working days. The DOLE guidelines and the Supreme Court decisions typically do not explicitly state that the period should exclude weekends or holidays. In the absence of a clear exclusion, the default rule is often to count all calendar days, including weekends and holidays. However, many employers, out of fairness or established policy, may clarify that only working days are to be counted. This depends on the employer’s policies, the language of the NTE, and industry practices. Where no such clarification is provided, the safe interpretation is to count all calendar days continuously.
4. Relevant Jurisprudence and DOLE Issuances
While there may be no controlling case explicitly stating that Saturdays and Sundays must always be included, the principle of counting periods under Philippine legal practice often relies on the Civil Code and the Rules of Court for guidance, in the absence of a direct labor-specific rule. Under Rule 22 of the Rules of Court, when a period is given in days, the first day is excluded and the last day is included. There is no automatic exclusion of weekends unless a rule or order states otherwise. Although the Rules of Court apply primarily to judicial proceedings, they often serve as a supplementary guide in administrative or quasi-judicial contexts, including labor matters, when no specific regulation provides otherwise.
The Labor Code and its implementing rules do not provide a formula that alters this general approach. Thus, unless the employer’s internal rules, the NTE itself, or a collective bargaining agreement (if one exists) stipulates that only working days will be counted, the safe legal assumption is to count all days consecutively, including weekends and public holidays. This interpretation is generally consistent with the principle of expediency and efficiency in the resolution of labor disputes.
5. The Impact of Internal Company Policies or Collective Bargaining Agreements
In some workplaces, Collective Bargaining Agreements (CBAs) or the Company Code of Conduct (COC) may explicitly provide how to count the period for responding to an NTE. If the agreement or handbook states, for example, that the employee shall have five (5) working days, the counting would exclude weekends and recognized non-working holidays. Conversely, if it states five (5) calendar days, all days are counted, including weekends.
It is therefore prudent for employees to first review their contract, CBA provisions, and the company’s employment manual or any policies disseminated to employees. In the absence of such clarifications, the general rules on counting periods, as found in legal procedures or recognized labor standards, are applied.
6. Application of the Principle to the Given Dates
In the scenario presented, the NTE was issued on October 22, a Tuesday. Generally, the counting of the five-day period would start on the day following the receipt of the NTE. Thus, if the NTE was received on October 22, Day 1 would be October 23, Day 2 would be October 24, Day 3 would be October 25, Day 4 would be October 26, and Day 5 would be October 27.
If the instructions were to count calendar days, the fifth day indeed falls on Sunday, October 27. Should the employee or employer believe that “working days” must be counted, or if a relevant policy states so, then the period might be adjusted to end on a date that excludes weekends. Without such guidance, the default assumption is that weekends are included.
7. Considering Reasonableness and Good Faith
Philippine labor law is protective of employees’ rights, and any ambiguity in the interpretation of deadlines or procedures should lean towards fairness. If an employer insists on counting weekend days but fails to receive the employee’s explanation until the following Monday, the employer should, in good faith, consider whether the employee genuinely had difficulty submitting a response on a non-working day or if such rigid counting would deprive the employee of a meaningful opportunity to be heard.
On the other hand, employees should not delay the submission of their explanation without justifiable reason. Since technology now allows for the sending of written explanations electronically, many employers do not consider weekends to be an absolute bar to complying with deadlines, especially if the instructions are silent about any exclusions. The principle of fairness cuts both ways: the employee is expected to act diligently, and the employer is expected to apply its rules reasonably.
8. Consequences of Failing to Meet the Deadline
If the employee fails to submit a written explanation within the prescribed period, the employer may consider the employee’s silence as a waiver of the right to be heard, and proceed to decide the case based on the evidence at hand. While this does not automatically justify a dismissal, it can weigh heavily against the employee when the employer evaluates the charges.
If, however, the employee can argue that the deadline was ambiguous or that it fell on a non-working day when no one was available to receive the explanation, the employee may have grounds to challenge any adverse decision subsequently made. The principle of substantial compliance may sometimes be invoked, as the Supreme Court has repeatedly stated that the essence of due process in the workplace is simply to give the employee the opportunity to be heard and the employer the opportunity to consider the defense. Technicalities should not overshadow fairness.
9. Additional References in Philippine Labor Law
Labor Code of the Philippines: While it sets out just and authorized causes for termination, it does not specify the exact period for responding to an NTE.
DOLE Department Order No. 147-15: Provides guidelines on the conduct of termination proceedings. It recommends that an employee should be given a reasonable period to answer the NTE, often interpreted as five (5) calendar days, although not strictly mandated.
Jurisprudence (e.g., King of Kings Transport v. Mamac, G.R. No. 166208, April 29, 2008): Emphasizes that the employee must be given a “reasonable opportunity” to be heard. Although this decision and others like it do not specify a strict counting method, they highlight the importance of clarity and reasonableness in the process.
10. Recommended Best Practices for Both Employers and Employees
For Employers:
a. Clearly state in the NTE whether the given period refers to calendar days or working days.
b. If weekends or holidays intervene, consider providing a clarification or a short extension to avoid disputes over timeliness.
c. Ensure that someone is available to receive the employee’s written explanation if the deadline falls on a weekend or holiday, or alternatively allow submission by electronic mail.For Employees:
a. Do not wait until the last day to prepare and submit your explanation.
b. If the period includes weekends, consider submitting your response by Friday to avoid any confusion.
c. If unclear, politely request clarification from the employer’s HR department as early as possible.
d. Keep a paper trail or electronic proof of submission, including timestamps and receipts.
11. Harmonizing Practice with Principles of Fair Play
The overarching theme in Philippine labor law is that an employer must observe both substantive and procedural due process before penalizing an employee. Counting the response period for an NTE should not be done in a manner that deprives the employee of a meaningful chance to defend themselves. The law expects employers to act fairly, and employees to respond diligently. When in doubt, the interpretations that preserve the essence of due process and fairness should be adopted.
12. Conclusion: Applying the Principles to the Question
Given the scenario, if no explicit instruction was provided that only working days are counted and no company policy states otherwise, the counting of the five-day period after receiving an NTE would likely include weekends. Starting from the day after the NTE issuance (October 22), the fifth day of the period would fall on October 27, which is a Sunday.
For absolute certainty, an employee should communicate with the employer’s human resources department or legal counsel to confirm the counting method. However, under the general principles of Philippine labor law, absent any specific exclusion of weekends, the time frame would be October 23 as Day 1, and so forth, culminating in October 27 as Day 5. The employee would thus be expected to file their response by Sunday. Should that day be impractical due to non-working circumstances, the employee may attempt to submit earlier or, if applicable, send their explanation electronically. Doing so helps ensure that the employee’s right to due process is not compromised and that the employer cannot later claim non-compliance with the deadline.
Ultimately, clarity and reasonableness are key. While Philippine labor law does not prescribe a rigid formula for counting days in NTE responses, it does mandate fairness. Both parties benefit from understanding these principles and applying them in a manner that respects the employee’s right to be heard and the employer’s right to maintain discipline and order within the workplace.