Employee Rights During Administrative Hearings and the Notice to Explain

In the Philippine legal landscape, the security of tenure is a constitutionally guaranteed right. To validly dismiss an employee, an employer must comply with both substantive due process (a valid cause under the Labor Code) and procedural due process. The latter is characterized by the "Two-Notice Rule," which centers on the Notice to Explain and the subsequent Administrative Hearing.

I. The Procedural Framework: The Two-Notice Rule

The Supreme Court has consistently held that procedural due process consists of the following steps:

The First Written Notice (Notice to Explain): Informing the employee of the specific causes for dismissal and giving them an opportunity to explain their side.
The Administrative Hearing or Conference: Providing the employee a formal venue to present evidence and rebut the accusations.
The Second Written Notice (Notice of Decision): Informing the employee of the employer’s decision after considering all evidence and explanations.

II. The Notice to Explain (NTE)

The NTE is the primary vehicle for informing an employee of the charges against them. For an NTE to be legally sufficient, it must meet specific criteria:

Specificity of Charges: The notice must contain a detailed narration of the facts and circumstances surrounding the alleged charge. Vague references to "company policy violations" or "misconduct" without specific dates, acts, or witnesses are generally insufficient.
Reference to Company Policy or Law: It should specify which company rule or provision of the Labor Code (e.g., Serious Misconduct, Willful Disobedience, Gross Neglect) was violated.
Reasonable Period to Answer: The employee must be given at least five (5) calendar days from receipt of the notice to submit a written explanation. This period allows the employee to consult with counsel or gather evidence.

III. The Administrative Hearing or Conference

While the NTE allows for a written defense, the administrative hearing provides a verbal and interactive forum. Under prevailing jurisprudence (notably King of Kings Transport, Inc. vs. Mamac), the hearing serves as the "ample opportunity to be heard."

Key Rights During the Hearing:

Right to be Informed of the Hearing: The employee must receive a separate notice stating the date, time, and venue of the conference.
Right to Counsel/Representative: The employee has the right to be assisted by a lawyer or a union representative. While the employer is not required to provide the lawyer, they cannot prohibit the employee from bringing one.
Right to Present Evidence: The employee may present witnesses, affidavits, or documentary evidence to disprove the allegations.
Right to Face Accusers: While not as strict as criminal cross-examination, the employee should be given the chance to clarify statements made by management witnesses.

Note on Mandatory Hearings: In Perez vs. Philippine Telegraph and Telephone Company, the Supreme Court clarified that a formal trial-type hearing is not always mandatory if the employee is given a full opportunity to submit a written defense. However, if the employee requests a hearing or if the company's internal rules require one, it must be granted.

IV. Preventive Suspension

During the investigation, an employer may place an employee under preventive suspension if their continued presence poses a "serious and imminent threat to the life or property of the employer or of his co-workers."

Duration: It must not exceed thirty (30) days.
Pay: Preventive suspension is generally unpaid. However, if the employer extends the suspension beyond 30 days, they must pay the employee’s wages during the extension, or reinstate them to their former position.

V. The Burden of Proof

In administrative proceedings, the burden of proof rests entirely on the employer. The quantum of evidence required is substantial evidence, which is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

If the employer fails to provide substantial evidence of the wrongdoing, the dismissal is deemed illegal, regardless of whether the procedural steps (NTE and hearing) were followed perfectly.

VI. Consequences of Non-Compliance

Failure to adhere to these rights results in different legal outcomes depending on the nature of the violation:

Violation Type	Legal Consequence
No Just Cause, but Followed Procedure	Illegal Dismissal; Reinstatement and Full Backwages.
With Just Cause, but Failed Procedure	Legal Dismissal, but the employer must pay "Nominal Damages" (usually ₱30,000 to ₱50,000).
No Just Cause and No Procedure	Illegal Dismissal; Reinstatement, Backwages, and potential Moral/Exemplary damages.