1) What a “Notice to Explain” is—and why it matters

A Notice to Explain (NTE) is the employer’s first written notice in an employee disciplinary process, commonly used when the employer is considering termination for a just cause under the Labor Code. In practice, it is the document that:

Informs the employee of the specific acts or omissions being charged;
Invites (and requires) the employee to submit a written explanation/defense; and
Triggers the employer’s obligation to observe procedural due process.

In illegal dismissal and disciplinary disputes before the NLRC and the courts, the NTE is often Exhibit “A” for evaluating whether the employer complied with due process. Even if a dismissal is substantively valid (there is a just cause), a defective procedure can still result in the employer being ordered to pay nominal damages for violating statutory due process.

2) Legal foundations: where the NTE fits in Philippine labor law

A. Substantive vs. procedural due process

Philippine labor law separates two questions:

Substantive due process: Was there a valid ground (just cause/authorized cause) and sufficient facts to support it?
Procedural due process: Was the employee given proper notice and a real opportunity to be heard before the penalty (especially dismissal) was imposed?

The NTE is a key component of procedural due process in just cause dismissals.

B. When an NTE is typically required

An NTE is primarily associated with dismissal for just causes (Labor Code provisions on just causes, commonly discussed under Article 297 in many references). These include, among others:

Serious misconduct
Willful disobedience
Gross and habitual neglect of duties
Fraud or willful breach of trust
Commission of a crime against the employer or its representatives
Other analogous causes

For non-termination penalties (e.g., suspension, demotion, severe reprimand), an NTE is also widely used and often required by company policy/CBA and by fairness standards—particularly when the penalty is serious. While the “two-notice rule” is most litigated in dismissal cases, employers commonly apply a similar notice-and-hearing framework to major disciplinary sanctions to reduce legal risk.

3) The “Two-Notice Rule” in just-cause termination

Philippine jurisprudence and DOLE rules recognize the two-notice requirement for just cause dismissal:

First notice (NTE / notice of charge):
- Specifies the acts/omissions complained of, and
- Directs the employee to submit a written explanation within a reasonable period.
Second notice (notice of decision):
- States that the employer has considered all circumstances, and
- Informs the employee of the decision (dismissal or other penalty) and the reasons.

This framework is strongly associated with King of Kings Transport, Inc. v. Mamac, which emphasized both specificity of charges and a reasonable opportunity to respond.

4) Minimum time to respond to an NTE: the “5 calendar day” rule

A. The practical minimum: at least five (5) calendar days

A widely recognized benchmark in Philippine labor practice is that an employee must be given at least five (5) calendar days from receipt of the NTE to submit a written explanation.

This “five calendar day” standard is anchored in the concept of reasonable opportunity to be heard. It is meant to give the employee enough time to:

Understand the accusation,
Consult with a union officer or counsel (if desired),
Gather documents or witnesses, and
Prepare a meaningful written explanation.

B. Calendar days (not working days)

The usual articulation is calendar days. Counting is typically from actual receipt of the NTE.

C. Can it be longer than five days?

Yes—and in many situations it should be longer. Five calendar days is treated as a minimum benchmark, not a ceiling. More time is prudent when:

The accusation is complex (e.g., fraud, data/privacy incidents, financial anomalies);
Many transactions or dates must be reviewed;
The employee requests documents essential to a response; or
The employee is on leave, hospitalized, assigned offsite, or otherwise reasonably unable to comply.

A best practice is to allow extensions when reasonably requested, and to document the grant/denial of extensions.

D. Can it be shorter than five days?

Shorter periods are high-risk. Employers sometimes argue urgency (e.g., safety/security threats), but the safer approach is to still observe the minimum reasonable period unless there is an extraordinary situation—and even then, document the reasons and still provide a meaningful chance to respond (including the chance to supplement the explanation).

5) “Ample opportunity to be heard”: what due process requires (and what it doesn’t)

A. Due process is not purely “paper compliance”

Due process is not satisfied by issuing an NTE that is vague, then rushing to dismiss. The employee must be given a real chance to defend themselves.

B. Hearing is not always mandatory—but opportunity to explain is

Philippine rulings generally hold that a formal trial-type hearing is not always required in company investigations. What matters is that the employee was given an ample opportunity to be heard, which may be satisfied through:

A written explanation, and/or
A conference/meeting where the employee can respond to the allegations.

However, a hearing or conference becomes especially important when:

The employee requests it in a meaningful way;
There are material factual disputes (he-said/she-said issues);
Credibility of witnesses matters; or
Company rules/CBA expressly require a hearing.

C. Right to representation

In administrative investigations, employees may be assisted by:

A union representative (if unionized),
A co-employee or chosen representative (depending on company policy),
Counsel (lawyer), if the employee chooses.

Employers are generally not required to provide counsel, but should not unreasonably prevent an employee from seeking assistance—especially when the stakes are termination.

D. Access to the basis of the charge

To make the right to respond meaningful, the NTE should identify (and, where appropriate, provide access to):

The incident details (dates, places, acts),
The rule/policy allegedly violated,
The essential evidence or documents relied upon (or at least a way to review them).

Employers may withhold sensitive information in limited cases (e.g., protecting complainants, trade secrets, security protocols), but should still provide enough particulars for a fair defense.

6) What a legally defensible NTE should contain

A strong NTE usually includes:

Specific narration of the facts
- What happened, when, where, who was involved
- Avoid generic labels like “misconduct” without particulars
Company rule/policy and/or legal ground
- Cite the Code of Conduct provision, memo, SOP, or policy violated
- If dismissal is contemplated, connect facts to the just cause category (e.g., serious misconduct, willful disobedience)
Clear directive to explain
- Require a written explanation within at least five (5) calendar days from receipt
- Provide where/how to submit (HR email, HR office, online portal)
Notice of possible penalty
- State that the act, if proven, may warrant disciplinary action up to and including termination (when applicable)
Invitation to a conference (optional but recommended)
- Include the schedule or state that HR will set one, especially for contested matters
Reminder of fairness safeguards
- Option to present witnesses, attach documents, or request clarifications (as applicable)

7) Service, receipt, and proof: common litigation flashpoints

In many labor cases, the dispute is not only what the NTE said, but whether it was actually received and when.

A. Safer service methods

Personal service with employee signature acknowledging receipt
Registered mail/courier with tracking and delivery confirmation
Company email (best if the employee regularly uses it and policy recognizes it)
HRIS/portal notifications with audit logs

B. Refusal to receive

If an employee refuses to sign or accept, the employer should document refusal (witnessed by HR/security) and consider sending a copy by registered mail/email to create a trail.

C. Counting the response period

Count from receipt (or documented attempted receipt/refusal). Employers should be consistent, conservative, and document the computation.

8) The typical due process flow for just cause dismissal (practical timeline)

A commonly defensible workflow:

Incident report / complaint intake
Fact-finding (initial)
Issue NTE (first notice)
- Give ≥ 5 calendar days to submit explanation
Receive explanation (or note non-submission)
Administrative conference/hearing (as needed)
- Clarify contradictions, allow employee to respond further
Evaluation and recommendation
Issue Notice of Decision (second notice)
- State findings, reasons, and penalty; effectivity date

9) Preventive suspension: related but different

Employers sometimes place employees under preventive suspension while investigating, especially when the employee’s continued presence poses a serious and imminent threat to life/property or to the investigation.

Key points commonly applied in practice:

It is not a penalty; it is a holding measure during investigation.
It must be justified by risk (e.g., potential interference, safety threat).
It is typically limited in duration (commonly up to 30 days in many HR frameworks; extensions may require pay or other safeguards depending on circumstances and governing rules).

Preventive suspension does not replace the NTE requirement. The employee must still receive notice and opportunity to explain.

10) Authorized causes: different notice rules (and usually not an NTE)

For authorized causes (e.g., redundancy, retrenchment, closure not due to serious losses in some contexts, installation of labor-saving devices, disease), the legal structure is different:

The requirement is generally a written notice to the employee and to DOLE at least 30 days before the effectivity of termination (commonly discussed under Labor Code provisions on authorized causes).
An NTE is not the standard instrument here because the ground is not “fault-based” misconduct. The focus is compliance with statutory notice, good faith, fair criteria (e.g., redundancy selection), and payment of separation pay where required.

11) Special situations that often arise

A. Probationary employees

Probationary employment can be terminated for:

Failure to meet reasonable standards made known at engagement, or
A just/authorized cause.

Even for probationary employees, observance of procedural fairness is still important. If the termination is for a just cause, the two-notice framework is still typically expected.

B. Resignation vs. “forced resignation”

Employers sometimes issue NTEs that pressure employees to resign. Forced resignation can be treated as constructive dismissal. Due process documents should not contain coercive language.

C. Abandonment

Abandonment requires (1) failure to report for work and (2) a clear intention to sever the employment relationship. NTEs in abandonment cases should:

Direct the employee to report back and explain absences, and
Be served properly and documented.

12) What happens if due process is defective?

A. Substantively valid dismissal, procedurally defective

If there is a valid just cause but the employer failed in the two-notice/hearing requirements, the dismissal may remain valid, but the employer can be ordered to pay nominal damages for violating statutory due process (a doctrine associated with Agabon v. NLRC and related cases).

B. Authorized cause with defective notice

For authorized causes, failure to comply with the statutory notice requirement (and other conditions) can also expose the employer to liability, including nominal damages (often associated with Jaka Food Processing Corp. v. Pacot).

Practical note: Courts have used benchmark nominal damage amounts (commonly referenced as ₱30,000 for just-cause procedural violations and ₱50,000 for authorized-cause procedural violations), but outcomes can vary depending on circumstances and later rulings.

C. When defective notice contributes to a finding of illegal dismissal

If the employer also fails to prove the just cause factually, the dismissal becomes illegal, exposing the employer to remedies such as reinstatement/backwages (or separation pay in lieu in certain situations), plus other monetary awards where applicable. Procedural flaws then become additional support for the employee’s case.

13) Drafting tips and red flags

For employers (best practices)

Be specific: dates, times, acts, rule violated.
Give ≥ 5 calendar days to respond; be open to reasonable extensions.
Offer a conference when facts are disputed or when requested.
Keep language neutral; avoid “we already decided you’re guilty.”
Document everything: service, receipt, minutes, evaluation.

For employees (how to respond effectively)

Meet the deadline (or request extension in writing).
Answer each allegation point-by-point.
Attach documents, identify witnesses, and clarify context.
If you need key documents (CCTV footage, audit logs), request access in writing.
Avoid admissions that are unnecessary; be factual and measured.

Red flags that often fail scrutiny

NTE says only “misconduct” with no details.
Only 24–48 hours to answer with no compelling justification.
Decision notice issued immediately after NTE, with no real evaluation.
No proof of service/receipt.
No chance to respond to new evidence that appeared after the initial explanation.

14) Simple NTE structure (outline)

Subject: Notice to Explain – [Brief charge] To: [Employee name, position, department] Date: [Date]

Statement of facts: On [date/time], at [place/system], you allegedly [specific acts].
Policy/rule violated: This may constitute a violation of [policy section], and may fall under [just cause category, if applicable].
Directive: You are required to submit a written explanation within five (5) calendar days from receipt of this notice, addressing the allegations and stating why no disciplinary action should be imposed.
Submission details: Submit to [HR email/office] on or before [deadline date].
Possible penalty: If the allegations are proven, disciplinary action up to and including termination may be imposed.
Conference: You may be invited to an administrative conference / or you may request one in writing.

Signed: [Authorized signatory]

15) Quick FAQ

Is 5 calendar days always mandatory? It is the safest minimum benchmark associated with “reasonable opportunity to be heard.” Giving less time is risky and often attacked in labor cases unless strongly justified and still fair in context.

Do we always need a hearing? Not always a trial-type hearing, but the employee must have an ample chance to be heard. A conference is strongly advisable when facts are disputed or when requested.

Can the employee be dismissed if they don’t respond to the NTE? Non-response can allow the employer to decide based on available evidence, but the employer must still prove the just cause and show that a fair opportunity was given.

Does an NTE apply to redundancy/retrenchment? Not typically. Authorized causes follow a 30-day notice rule to the employee and DOLE, plus other substantive requirements.

General reminder

This article is a general discussion of Philippine labor due process concepts around the NTE and related notices. Specific outcomes depend on the facts, the employer’s policies/CBA, and how evidence and procedure are documented.