Notice to Explain (NTE) for Unexcused Absence in the Philippines: A Comprehensive Legal Guide

1. Conceptual Framework

Term	Meaning	Key Sources
Unexcused Absence / Absence Without Official Leave (AWOL)	The employee is not at work, without prior approval or a reason subsequently accepted by the employer.	Company policies; Labor Code Art. 297(c) (formerly 282) ― “gross and habitual neglect of duties”; case law on abandonment.
Notice to Explain (NTE)	The first written notice in the statutory two-notice rule, formally charging the employee and directing a written explanation.	DOLE Department Order (D.O.) 147-15 §5(a); King of Kings Transport v. Mamac, G.R. 148208 (June 15 2004).

An NTE is not a mere memorandum; it is the procedural lynchpin that preserves due process whenever an absence might lead to suspension or dismissal.

2. Legal Bases

Substantive Ground Article 297(c) allows dismissal for gross and habitual neglect. Several Supreme Court rulings treat prolonged or repeated AWOL as neglect or abandonment, provided intent to sever employment is shown (e.g., Metro Transit v. SRSTA, G.R. 226159, Nov 20 2019).
Procedural Due Process
- Two-Notice Rule
  - 1st Notice (NTE): states facts, rule violated, directive to explain within a reasonable period (DO 147-15 suggests ≥5 calendar days).
  - 2nd Notice (Notice of Decision): issued after explanation/hearing, stating findings and penalty.
- Opportunity to be Heard may be:
  - Written explanation alone; or
  - Administrative conference/hearing (mandatory if requested, unionized workforce, or complex facts).
Reasonable Period to Explain The Supreme Court in Solid Development v. Gangoso, G.R. 165951 (June 15 2015) held 48 hours too short; 5 days is now the norm.
Guidelines on Determining Penalties
- DO 147-15 Appendix “Table of Penalties” (non-binding but persuasive).
- Company Code of Conduct prevails if reasonable and known to employees.

3. Essential Elements of a Valid NTE

Element	Explanation
Heading & Date	“Notice to Explain” + full date to mark start of 5-day period.
Employee Identification	Full name, position, and department for clarity.
Statement of Facts	Specific dates/hours of absence; reference timekeeping records.
Alleged Violations	Cite provisions of: (a) Company Attendance Policy, (b) CBA, and/or (c) Labor Code art. 297(c).
Directive to Explain	Clear instruction to submit a written explanation within at least five (5) calendar days from receipt.
Possible Consequences	State that failure to explain may lead to disciplinary action up to dismissal.
Signature Line	HR or authorized officer, with “Received By” line for employee acknowledgment.

4. Sample Template

NOTICE TO EXPLAIN

Date: ________ To: [Employee] | Position: ________

Records show you were absent on May 30–31 & June 1 2025 without prior leave or subsequent justification. These acts constitute Absence Without Official Leave under Section 6, Company Attendance Policy, and may amount to Gross and Habitual Neglect of Duties under Article 297(c) of the Labor Code.

You are hereby directed to submit a written explanation within five (5) calendar days from receipt of this notice why no disciplinary action should be taken against you. Failure to comply may warrant further action, including termination.

An administrative conference is scheduled on June 13 2025 at 2:00 p.m. should you wish to clarify matters in person or with counsel.

HR Manager

5. Jurisprudential Highlights

Case	G.R. No.	Doctrines Relevant to AWOL
King of Kings Transport v. Mamac	148208 (2004)	Two-notice rule is mandatory.
Supreme Steel Corp. v. Nagkakaisang Manggagawa	185556 (2015)	Abandonment requires clear intent to sever; mere AWOL insufficient.
Silangan Textile v. Datar	228059 (2021)	5-day period to explain; 24-hour period unreasonable.
Mother’s Way v. Lim	198777 (2016)	Non-issuance of NTE renders dismissal illegal even if substantive ground exists.

6. From Absence to Possible Dismissal: Step-by-Step

Fact-Finding: Verify absences via logs/biometrics.
Draft & Serve NTE: Personal service with acknowledgment; if employee absent, registered mail to last known address.
Await Written Explanation: Minimum 5 days.
Administrative Hearing (optional but prudent): Especially for contested facts.
Deliberation: Assess gravity, previous infractions, mitigating factors (illness, family emergency).
Decision Notice: State findings, law/policy basis, penalty, effectivity date.
Implementation & Records: Place in 201 file; report to DOLE (if retrenchment/closure, not for disciplinary dismissal).

7. Typical Penalties for Unexcused Absence

Offense Frequency	Usual Penalty*
1st AWOL (≤3 days)	Written Warning / 1-3 day suspension
2nd	3-7 day suspension
3rd or Prolonged (≥5 consecutive days)	15-30 day suspension or Dismissal
Abandonment (≥10 consecutive days + intent to sever)	Dismissal

*Subject to company code and CBA; due process always required.

8. Employee Defenses & Employer Counter-Measures

Possible Excuse	Employer Checklist
Medical emergency	Require medical certificate; check authenticity.
Force majeure (transport strike, flood)	Assess reasonableness; look for news or LGU announcements.
Miscommunication of schedule	Review duty rosters; consider management lapse.

9. Consequences of Skipping the NTE

Illegal Dismissal: Reinstatement and full backwages (§292-b Labor Code).
Nominal Damages: Even if dismissal valid, failure to follow due process can cost ₱30,000 (Agabon v. NLRC, G.R. 158693).
Administrative Fines: DOLE labor inspectors may cite the employer, especially in special economic zones.

10. Best-Practice Tips for Employers

Codify Attendance Policy in Employee Handbook; disseminate annually.
Automate Timekeeping for reliable documentation.
**Track patterns of absence, not just totals.
Use Progressive Discipline; proportionality builds fairness record.
Keep a Paper Trail: NTE, minutes, evidence attached.

11. Practical Advice for Employees

Reply even if unsure. A partial explanation shows good faith.
Attach proof: Medical certificates, affidavits, photos of flooding, etc.
Attend the hearing or request one.
Seek union or legal assistance early when facts are complex.

12. Frequently Asked Questions

Question	Short Answer
Is an NTE needed for a one-day absence?	Yes, if the employer plans to impose a penalty beyond an informal reminder.
Can I email my explanation?	Yes, if allowed by policy or acknowledged by HR (keep proof of sending).
What if I ignore the NTE?	Employer may decide ex-parte and impose penalties, including dismissal.
Does filing a sick leave form after the fact cure AWOL?	Only if employer accepts the reason; discretion lies with management but denial must be reasonable.

Conclusion

A Notice to Explain is the legally required first step before disciplining or dismissing a Philippine employee for unexcused absence. It embodies constitutional due process in labor relations and protects both parties: the employer’s right to enforce discipline and the employee’s right to security of tenure. Employers who adhere strictly to the form, timing, and substance of the NTE—and employees who respond promptly and truthfully—help ensure that any sanction that follows is both lawful and fair.