Timeliness is Fairness: Labor Rules on the Late Issuance of a Notice to Explain (NTE) for Tardiness in the Philippines (Private-sector focus; updated to 31 May 2025)

1. Why “speed” matters in disciplinary due process

Article 297 [formerly 282] of the Labor Code recognizes “serious misconduct, willful disobedience, gross and habitual neglect of duties, fraud or loss of trust, and other analogous causes” as just causes for dismissal. Whatever the ground, employers must comply with the constitutional guarantee of due process. In the employment context this has crystallised into the two-notice rule:

First written notice (Notice to Explain / NTE). It specifies the acts complained of and gives the worker a reasonable period to answer.
Second written notice (Notice of Decision). It informs the employee of the employer’s findings and the penalty imposed after considering the answer and, when requested, a hearing or conference.

The Supreme Court has repeatedly held that the NTE must be served “within a reasonable time” from the employer’s knowledge of the infraction. Delay is not a mere technical misstep—it can amount to condonation or estoppel, strip the employer of the right to discipline, or convert an otherwise valid dismissal into one that is merely “effective but procedurally defective,” exposing the employer to nominal damages.

2. Tardiness as an administrative offense

Tardiness is normally classified by company policies as a minor or light offense when occasional, and habitual neglect of duty when frequent or cumulative. Unlike absences, a single instance of being late rarely suffices for dismissal; what is punished is the pattern (e.g., “three tardies in a month” or “six in a year”). Because it is incremental, prompt issuance of an NTE after each chargeable tardy is critical—both to give the worker a chance to explain and to keep the running tally transparent.

3. Primary legal and regulatory texts

Source	Key take-away on timeliness
Art. 297 & 299, Labor Code	Due process is mandatory for just-cause dismissal.
Department Order (D.O.) 147-15, §5(b)	First notice must give the employee “at least five (5) calendar days” to submit a written explanation. The rule is silent on an outer limit but implies immediacy by requiring the date and particulars of the offense.
King of Kings Transport v. Mamac, G.R. No. 166208, 29 Jun 2007	Embedded the 5-calendar-day reply period in jurisprudence; stressed that the first notice should be issued without undue delay.
Unilever Phils. v. Rivera, G.R. No. 201701, 25 Jan 2016	Sustained dismissal for habitual tardiness but reduced penalty because the employer tolerated the practice for months before issuing an NTE; employer deemed partly at fault.
Pepsi-Cola Products Phils. v. Macatiag, G.R. No. 205828, 4 Feb 2015	Six-year delay in charging cumulative tardiness constituted condonation; dismissal set aside.
Philippine Journalists, Inc. v. Mosqueda, G.R. No. 192347, 18 Apr 2012	Eight-month delay in investigating repeated tardiness fatal to the employer’s case; Court characterized it as “sleeping on one’s rights.”

No statutory prescriptive period is fixed for internal disciplinary offenses, but Art. 305 (prescription of offenses penalized under the Code) and jurisprudence on laches supply analogies. In practice, the Supreme Court tests timeliness by reasonableness given the facts—often days or weeks, rarely months, and almost never years.

4. How late is “late”? The emerging reasonableness test

Prompt discovery, prompt action. Where the infraction is easy to detect (e.g., biometric logs), employers are expected to issue an NTE within a few days of confirmation.
Documented investigation. If verification requires an audit (e.g., falsified timecards), a delay is excused only for the time strictly necessary to finish the probe.
No selective enforcement. Sporadic issuance of NTEs for some employees but not others of equal infraction invites a finding of bad faith or waiver.
Total silence can be condonation. Persistent inaction beyond a “reasonable time” signals that management has forgiven the violation; it cannot later resurrect it to justify dismissal.

5. Practical guideposts from jurisprudence

Case	Lapse between offense & NTE	Ruling on timeliness
Jaka Food Processing v. Pacot (G.R. No. 151378, 10 Mar 2005)	12 days	Reasonable; investigation of pilferage required fact-finding.
Andrada v. CA (G.R. No. 206610, 11 Jan 2016)	1–2 days	Proper; employer issued NTE immediately after clock-in data review.
Pepsi-Cola (2015)	6 years	Unreasonable; infraction deemed condoned.
University of Santo Tomas v. Samson (G.R. No. 218611, 20 Jun 2022)	4 months	Excessive delay absent justification; dismissal invalid.
Hansei Corp. v. De Oca (G.R. No. 242022, 13 Jul 2021)	21 days	Allowed because HR awaited CCTV and biometrics reconciliation.

Rule of thumb: Issue the NTE within 24–72 hours of confirming a tardiness record, or document convincingly why more time was indispensable.

6. Consequences of issuing the NTE late

Invalid dismissal despite just cause. If the delay is egregious, the entire dismissal may be set aside and the employee reinstated with back-wages.
Nominal damages. When the cause is valid but only the procedure defective, courts usually sustain the dismissal but award ₱30,000–₱50,000 as nominal damages (see Jaka and Agabon v. NLRC, G.R. No. 158693, 17 Nov 2004).
Lesser penalty. The Labor Arbiter may downgrade dismissal to suspension if the employer’s inaction suggests the tardiness was not really serious or habitual.
Labor-only contracting and successor liability. In a triangular setup, a principal that tolerates contractor delays in disciplining workers can itself be held jointly liable.

7. Interaction with company policy and collective bargaining agreements (CBAs)

Progressive discipline set out in a handbook (e.g., verbal warning for first tardy, written warning for the second, suspension for the third) binds the employer. If the handbook fixes a deadline (e.g., “charge must be served within five days of the offense”), non-compliance alone may invalidate the penalty.
CBAs may shorten or extend reply periods but cannot abolish the first notice altogether; such stipulations would be contrary to Article 297.
When company policy is silent, courts default to D.O. 147-15 and case law.

8. Public-sector parallel (Civil Service Commission)

For civil servants, the 2017 Rules on Administrative Cases in the Civil Service (RACCS) apply. The show-cause order must be issued “within five (5) days from receipt of the complaint or discovery of the offense”, and the employee gets three (3) days to answer (RACCS, Rule IV, §§16-17). While not binding on private employers, CSC jurisprudence reinforces the principle that speed is integral to fairness.

9. Best-practice checklist for HR and compliance officers

Step	Timeline	Key contents / action points
Detect & verify tardiness	Day 0	Retrieve biometrics, timecards, CCTV if needed.
Draft NTE	Day 0–1	State: (a) specific dates & minutes late; (b) violated policy clauses; (c) right to counsel or union aid; (d) at least 5-day reply window; (e) potential penalties.
Serve NTE & secure receipt	Day 1–2	Personal delivery or registered mail; obtain signature.
Receive written explanation	Day 7 (counting calendar days)	If none, note refusal or failure to answer.
Conduct conference/hearing	Day 8–10	Optional if issues of fact exist or employee so requests.
Deliberate & issue Notice of Decision	Day 10–14	Discuss evidence considered; state findings and penalty; effectivity date.
Document everything	Continuous	Keep audit trail for NLRC inspection.

Tip: If the HR office genuinely needs more than a few days—for example, when 200 time sheets are under review—issue an interim memorandum telling the employee that an investigation is pending. This interrupts the perception of waiver and shows diligence.

10. Key take-aways

There is no fixed statutory deadline, but jurisprudence demands expedition; the longer the delay, the heavier the burden on the employer to justify it.
Habitual tardiness must be addressed contemporaneously. Allowing months of infractions before acting can amount to condonation.
The 5-calendar-day reply rule (King of Kings Transport; D.O. 147-15) is now the default and should be expressly stated in the NTE.
Failure to meet timeliness standards exposes employers to reinstatement orders or monetary damages—even when the lateness is undisputed.
Clear, consistently enforced policies and prompt HR action are the best shields against procedural challenges.

This article is for general guidance only and does not constitute legal advice. Where actual disputes exist, consult counsel or a certified labor law specialist.