Employee Response to an Employer’s “Notice to Explain” (Philippine Labor-Law Perspective)
1. The “Notice to Explain” (NTE) in Philippine Law
| Item | Key Points |
|---|---|
| Purpose | Satisfies the first step of the two-notice rule required for lawful disciplinary action or dismissal. |
| Legal Basis | - Article 297 [formerly 282], Labor Code (just causes) - Department Order (D.O.) 147-15, §5–6 (procedural due process) - Landmark cases: King of Kings Transport v. Mamac (G.R. No. 166208, 2007); Perez v. PT&T (G.R. No. 152048, 2009); Abbott v. Alcaraz (G.R. No. 192571, 2013). |
| Contents Required of Employer | 1. Specific acts/omissions charged (not mere labels). 2. Company rule or law allegedly violated. 3. Directive to submit a written explanation and/or appear at a hearing. 4. Reasonable period (DO 147-15: normally 5 calendar days from receipt). |
| Consequences of a Defective NTE | Inadequate notice = procedural due-process breach ⇒ dismissal may still stand (if for just cause) but employer can be liable for nominal damages (₱30,000 as in Agabon v. NLRC, G.R. No. 158693, 2004). |
2. Employee’s Right and Duty to Respond
Opportunity to Be Heard
- Constitutional guarantee of due process and security of tenure; codified in Labor Code.
Reasonable Period
- Standard: 5 calendar days → time to study the charges, consult counsel/union, gather evidence.
- Employee may request an extension in writing when complexity or unavailability of records warrants.
Choice of Format
- Written explanation plus oral clarificatory conference, if scheduled.
Assistance
- May be assisted by counsel, union representative, or any chosen companion during any hearing (D.O. 147-15, §6[b]).
3. Crafting an Effective Written Explanation
| Section | What to Include |
|---|---|
| Heading / Reference | Date, employee name & position, subject line “Re: Answer to Notice to Explain dated ______”. |
| Salutation | Addressed to HR Manager or authorized officer. |
| 1. Acknowledgment of Receipt | State when and how NTE was received. |
| 2. Summary of Allegations | Recap the acts complained of to show you understand the charge. |
| 3. Statement of Facts | Present your version chronologically; attach supporting documents (emails, logs, CCTV stills, permits, medical certificates, etc.). |
| 4. Admissions or Denials | Be clear which facts you admit, clarify, or expressly deny. |
| 5. Legal / Policy Defenses | Cite applicable CBA clauses, company rules, or legal provisions. |
| 6. Good-Faith / Mitigating Circumstances | Length of service, clean record, lack of wrongful intent, obedience to superior’s order, emergency, etc. |
| 7. Prayer / Request | Request that no further disciplinary action be taken or propose a lesser penalty; ask for a conference if desired. |
| 8. Closing & Signature | Respectful closing; full name and signature. Attachments list. |
TIPS • Keep the tone professional and factual. • Avoid admissions that are not absolutely necessary; stick to verifiable facts. • Do not retaliate or disparage supervisors; focus on incident. • Submit within the deadline personally or by email, keeping proof of submission.
4. Follow-Up: Clarificatory Hearing
- Second Notice/Hearing: Employer may issue a notice of administrative conference (per D.O. 147-15).
- Employee’s participation: answer questions, present witnesses. Right to counsel persists.
- Minutes should be taken; ask to read/verify before signing.
5. Outcomes After the Response
| Scenario | Result |
|---|---|
| Charges dropped | Employer issues memorandum clearing the employee; file is closed. |
| Suspension or other penalty | Employer issues Notice of Decision stating findings, rule violated, and penalty. |
| Dismissal | Must be grounded on just/authorized cause and due process. Employee may contest via illegal dismissal complaint within 4 years (Art. 305). |
| Failure to Respond | Employer may decide ex-parte; silence is not admission but weakens defense. |
6. Common Defenses in Philippine Jurisprudence
- No Substantial Evidence – employer’s proof hearsay, forged, or insufficient.
- First Offense / Proportionality – penalty too harsh versus company code.
- Condonation / Estoppel – employer knew but delayed action unreasonably.
- Discrimination / Retaliation – disciplinary charge used to punish union activity or whistle-blowing.
- Necessary and Reasonable Act – employee acted to protect life/property.
7. Special Contexts & Nuances
| Situation | Additional Rules |
|---|---|
| Union Members (CBA) | Check CBA for “grievance machinery” that may modify timelines or provide mediation steps. |
| Data Privacy/Security | If allegations involve data breach, coordinate with Data-Privacy Officer; possible criminal aspects. |
| Occupational Safety | Refusal to work in imminent danger ≠ insubordination (Lab. Code, Art. 128 [b]). |
| Sexual Harassment | Separate procedure under R.A. 7877 and Safe Spaces Act; NTE often accompanied by Committee investigation. |
| Floating Status / Redundancy | “NTE” not mandatory for authorized-cause dismissal, but employers often issue courtesy notices. |
8. Model Template (Simplified)
[Employee Name] [Position / Department] Date: [___]
Subject: Answer to Notice to Explain dated [___]
HR Manager [Company Name]
Sir/Madam:
I acknowledge receipt of your Notice to Explain on [date received], alleging that on [incident date] I …
Facts and Circumstances
- …
Defenses/Explanation
- …
Supporting Documents • Copy of CCTV stills showing …
Good Faith & Length of Service I have served the company for ___ years with no previous infraction.
Prayer In view of the foregoing, I respectfully request that the charge be dismissed. Should you find otherwise, I pray that any penalty be tempered in accordance with company policy and jurisprudence on proportionality.
Respectfully,
[Signature] [Printed Name] Attachments: A-___ to A-___
9. Practical Checklist for Employees
- Read the NTE carefully; list each allegation.
- Mark the response deadline (count calendar days).
- Gather evidence immediately: emails, CCTV requests, witness statements.
- Consult a lawyer, union officer, or trusted HR peer.
- Draft → review → proofread; avoid emotional language.
- File the explanation with HR; obtain acknowledged copy or email receipt.
- Prepare for clarificatory hearing; rehearse your narrative.
- Keep all records for at least 4 years.
10. Key Takeaways
Responding to an NTE is both a right and a strategic obligation. A clear, timely, and well-supported explanation may avert dismissal, mitigate penalties, or strengthen a future illegal-dismissal case. Philippine labor jurisprudence rewards employees who exercise their due-process rights conscientiously and penalizes employers who deny them.
Disclaimer: This article is for general information only and does not constitute legal advice. For concrete situations, consult a licensed Philippine labor lawyer or authorized union representative.