Comprehensive guide for HR, counsel, and workers. General information only; not legal advice.

1) What is “serious misconduct”?

Serious misconduct is a just cause for dismissal when the employee’s act is:

Grave and not trivial;
Intentional or willful (not mere error, accident, or poor judgment);
Related to the performance of duties or reflects on fitness to continue working; and
Destructive of workplace discipline or the employer’s trust.

Illustrative acts: violence/assault at work, sexual harassment, theft/pilferage, fraud/dishonesty, intoxication while on duty leading to risk, tampering with records or systems, willful breach of safety protocols, and comparable offenses expressly defined in company rules. Context matters: position, access to assets, prior warnings, and harm/risk.

Proportionality controls the penalty. For non-grave first offenses, progressive discipline (warning → suspension → dismissal) is typical. For grave misconduct, dismissal on first offense can be proper.

2) The constitutional/Statutory frame

Dismissal for just cause requires substantive (there is a real, lawful ground) and procedural (due process) compliance. For serious misconduct, the required procedural due process is the well-known two-notice rule plus a hearing or conference.

3) The Two-Notice Rule (+ hearing)

Notice 1 — Notice to Explain (NTE) / Charge Sheet

Delivered before any penalty, this written notice must:

Specify the act(s)/omission(s) charged, with particulars: date, time, place, witnesses, data/evidence references (CCTV, emails, access logs).
Identify the rule/policy/contract clause allegedly violated and the legal ground (serious misconduct under just causes).
Direct the employee to submit a written explanation and inform them of their right to a conference/hearing and to be assisted by counsel or a representative.
Provide a reasonable period to respond — at least five (5) calendar days from receipt is the accepted floor.
State where and to whom the explanation should be submitted, and attach/allow access to evidence relied on (or state when/where it may be inspected).

Opportunity to be Heard — Administrative conference/hearing

A formal trial-type hearing is not mandatory, but the employee must have a meaningful chance to rebut the charge: submit a written answer, present documents, and respond to evidence in a conference where questions can be asked and clarifications sought.
Allow assistance by counsel/representative if requested.
Keep minutes: date, attendees, issues, admissions/denials, exhibits, and agreements.

Notice 2 — Decision Notice

After evaluation, issue a reasoned written decision that:

Finds facts: what was proven (with references to exhibits/testimony).
Applies rules/law: why the act qualifies as serious misconduct; why dismissal (or a lesser penalty) is proportionate considering length of service, past record, harm/risk, and company policy.
States the penalty and effectivity: date of dismissal or suspension; instructions on final pay/clearance (if dismissal, exclude backpay absent order; release earned wages/benefits).
Advises on remedies (e.g., internal appeal or external recourse).

4) Timelines & service

Five (5) calendar days minimum to answer the NTE. Longer is prudent for complex cases.
Service: personally with acknowledgment; or by registered mail/courier to the last known address; or by email if official channels are recognized in policy. Keep proof of service.
Decision: issue within a reasonable time after the hearing/conference and review. Avoid undue delay.

5) Preventive suspension (PS)

Purpose: remove the employee from the workplace while investigating if their continued presence poses a serious and imminent threat to life, property, or the integrity of records/evidence.
Not a penalty; it’s a management tool pending investigation.
Duration: up to 30 calendar days. If more time is needed, the employer may extend but must pay wages/benefits for the period beyond 30 days.
Notice: written Preventive Suspension Order stating reasons, start date, and duration. PS can be served with or after the NTE.

6) Evidence & standard of proof

Standard: Substantial evidence — relevant evidence a reasonable mind might accept as adequate (lower than “preponderance”).
Employer’s burden: prove the act and that it amounts to serious misconduct under law/policy.
Fair disclosure: provide the employee access to the evidence relied upon (redact sensitive third-party data as necessary) so they can respond meaningfully.
Consistency: penalties should be even-handed across comparable cases; departures should be explained.

7) Substantive nuances for “serious misconduct”

Willfulness/intent: show deliberate wrongdoing, not mere negligence. If it’s gross and habitual neglect, charge that ground instead; if willful disobedience, prove a lawful order, knowledge, and intentional defiance.
Work-relation: the act must relate to duties or indicate unfitness to continue working (e.g., off-duty misconduct that gravely affects the employer’s legitimate interests or the employee’s position of trust).
Sexual harassment/safe-spaces: follow the company’s anti-sexual harassment/safe spaces procedures (committee, separate investigation timelines) alongside labor due process.
Criminal overlap: a criminal complaint is independent; you need not wait for a criminal conviction to impose an administrative penalty if substantial evidence exists.

8) Procedural pitfalls & monetary consequences

Valid cause, flawed procedure: dismissal may still be upheld, but the employer can be ordered to pay nominal damages (commonly ₱30,000 for just-cause dismissals) for violating due process.
No cause + flawed procedure: reinstatement with full backwages or separation pay in lieu, plus damages/fees as warranted.
PS misuse (beyond 30 days without pay or without real threat): may result in constructive dismissal exposure or wage differentials.

9) Documentation checklist (for employers)

Incident report & evidence (CCTV clips, system logs, statements, chain of custody).
Company rules/policies (handbook excerpts, acknowledged by employee).
NTE with proof of service and evidence access.
Employee answer and hearing minutes (attendance, counsel/representative, issues discussed).
Investigation report (fact-finding, legal analysis, proportionality).
Decision Notice with proof of service.
Preventive suspension order & payroll treatment (if any).
Final pay computation and clearance notes (if dismissal).

10) Practical guide (for employees)

Read the NTE carefully; request copies/access to evidence.
Respond within the period; give a chronology, documents/screenshots, witness names, and explanations (e.g., lack of intent, authorization, absence of rule, inconsistency with practice).
Attend the hearing; bring a representative if needed.
After an adverse decision, consider appeal/mediation or file a case if the cause is weak or process defective.

11) Policy design tips (to prevent disputes)

Define offenses by gravity (light, less grave, grave) with illustrative examples and penalty grids.
Require acknowledgment of the handbook (paper or digital).
Provide a clear due-process SOP: NTE template, five-day answer window, hearing guidelines, decision template.
Recordkeeping and data privacy: store investigation files securely; restrict access; redact sensitive data in disclosures.
Training for supervisors on incident capture, neutrality, and non-retaliation.

12) Sample templates (editable)

A) Notice to Explain (Serious Misconduct)

Subject: Notice to Explain — Alleged Serious Misconduct To: [Employee], [Position] On [date/time] at [place], you allegedly [describe specific act] in violation of [policy/handbook clause] and constituting serious misconduct under the Labor Code. Attached/available for your review: [list evidence: CCTV file name, log ID, statements]. You are hereby directed to submit a written explanation within five (5) calendar days from receipt of this notice. You may be assisted by counsel or a representative. A conference is scheduled on [date/time/location or virtual link] to allow you to respond to the evidence and present any information. Failure to submit an explanation may result in a decision based on the records. Signed: HR/Disciplinary Officer

B) Preventive Suspension Order

Subject: Preventive Suspension Pending Investigation Due to the gravity of the charge and the risk to [people/property/records], you are placed under preventive suspension effective [date] for [up to 30 calendar days] while the investigation is ongoing. This is not a penalty. You are required to remain available for conferences and to refrain from accessing [systems/areas] without permission. Signed: HR/Disciplinary Officer

C) Notice of Decision

Subject: Decision — Serious Misconduct Case After review of your explanation dated [date] and the conference on [date], the company finds that: [findings of fact]. These acts violate [policy clause] and constitute serious misconduct, justifying [dismissal/equivalent penalty] effective [date]. Rationale: [analysis on willfulness, gravity, relation to duties, proportionality]. Separation matters: [final pay/clearance instructions]. You may [internal appeal option, if any]. Signed: Authorized Officer

13) Special contexts

Unionized workplaces: Follow the CBA grievance/discipline procedure in addition to statutory due process.
Fixed-term/project employees: May be dismissed for serious misconduct during the term with due process; otherwise, employment ends on term/project completion.
Managers & fiduciaries: Standards are heightened; “loss of trust” may be a separate or attendant ground — still follow two-notice + hearing.
Remote/hybrid: Allow electronic service of notices and virtual hearings; keep robust audit trails (email logs, e-signatures).
Overlap with Anti-Sexual Harassment/Safe Spaces policies: Constitute/activate the committee, observe its distinct timelines and confidentiality, and then issue labor notices consistent with its findings.

14) Frequently asked questions

Q1: Can we skip the hearing if the employee didn’t file a written explanation? You may decide on the record if the employee waived the opportunity after proper notice, but offering a conference is still best practice.

Q2: Are five days always required? Give at least five calendar days. More time is reasonable for complex allegations or voluminous evidence.

Q3: Is preventive suspension with pay required? Not for the first 30 days. If extended beyond 30 days, pay is required during the extension.

Q4: What if there’s an ongoing criminal case? You may proceed with the administrative case; standards differ. Do not rely solely on criminal outcomes.

Q5: What happens if we proved the act but missed a notice? The dismissal might be sustained (valid cause) but you risk nominal damages for due-process lapse.

15) Key takeaways

Two notices + hearing are the backbone of lawful dismissal for serious misconduct.
Five days to explain, 30-day cap on preventive suspension (pay if extended).
Substantial evidence and proportionality decide outcomes.
Documentation and consistent application of policy protect both sides.
Process errors cost money (nominal damages) even when the cause is valid.

Need help tailoring the NTE and decision to your policy and facts? Share the incident summary, evidence list, and your handbook clause, and I’ll draft polished notices and a hearing script you can use immediately.