1) Overview: What a Notice to Explain is and why it matters

A Notice to Explain (NTE) is the employer’s written charge sheet to an employee. It informs the employee of the alleged misconduct or infraction and requires the employee to submit a written explanation within a stated period. In Philippine labor practice, the NTE is the first step of procedural due process in employee discipline and—most critically—in disciplinary actions that may lead to dismissal.

Philippine law distinguishes between:

Substantive due process: there must be a just cause (or authorized cause) under law to discipline or dismiss; and
Procedural due process: the employer must follow the legally required process before imposing severe penalties such as dismissal.

The NTE is a cornerstone of procedural due process for just cause discipline (misconduct, neglect, insubordination, etc.). Even where an employee is clearly at fault, defects in due process can expose the employer to liability (typically as damages/nominal damages in dismissal cases), and can undermine the defensibility of the action.

2) Legal framework in the Philippine setting

A. Statutory backbone

In the private sector, employee discipline is anchored in the Labor Code, particularly the provisions on termination for just causes and authorized causes, and the general constitutional policy of protecting labor. The Labor Code does not itemize the detailed steps for every discipline scenario, but Philippine jurisprudence and implementing rules have standardized what is required.

B. DOLE due process model: the “two-notice rule” and “opportunity to be heard”

In just cause disciplinary termination, the commonly accepted model is:

First notice (NTE / Notice to Explain)
Opportunity to be heard (often called an administrative hearing or conference, depending on circumstances)
Second notice (Notice of Decision / Notice of Termination)

This is often summarized as the two-notice rule plus a meaningful chance to respond.

C. Public sector note (brief)

In government employment, discipline follows civil service rules and is typically more formalized, with specified charge sheets and procedural stages. This article focuses on the private sector NTE practice, which is the most common context where “Notice to Explain” is used.

3) When an NTE is required—and when it is strongly advisable

A. Required for dismissals for just cause

For termination based on employee fault (just causes), the NTE is required as part of procedural due process.

B. Strongly advisable for serious discipline short of dismissal

Even when the penalty is not dismissal (e.g., suspension, demotion, final written warning), issuing an NTE is strongly advisable because it:

shows fairness and consistency;
creates a record that the employee was informed and heard;
supports progressive discipline; and
reduces “surprise” and retaliation claims.

C. Authorized causes: different notice requirement

For authorized causes (e.g., redundancy, retrenchment, closure, disease), the due process requirement is typically notice to the employee and DOLE within prescribed timelines and content. An NTE is not the standard mechanism here because the cause is not employee fault; the process is notice and compliance with statutory prerequisites (plus separation pay rules where applicable).

4) The NTE’s core due process function: “reasonable opportunity to explain”

The NTE must not be a vague accusation. It must provide enough detail to allow the employee to prepare a meaningful response. Due process is not satisfied by merely telling an employee, “Explain why you should not be disciplined” without stating what the employee allegedly did, when, where, how it violates policy, and what evidence the employer has.

The goal is fairness: the employee must know the charge and be given a real chance to answer.

5) Essential contents of a legally defensible Notice to Explain

A well-drafted NTE typically includes the following:

A. Clear identification of the charged acts or omissions

Describe the specific act(s) complained of.
Include dates, time, location, and circumstances.
Identify affected persons, clients, property, or records (where relevant).

B. Policy/legal basis for the charge

Cite the company rule, code of conduct provision, handbook section, memorandum, or policy violated.
If applicable, cite a clause in the employment contract, confidentiality agreement, safety policy, or lawful order.

C. Evidence and particulars (not necessarily full disclosure, but enough for fairness)

Summarize or enumerate relevant evidence (e.g., CCTV timestamps, email trail, audit findings, incident report, witness accounts).
If attaching documents, list them and attach copies where feasible.

D. The directive to explain—plus deadline and manner

Require a written explanation.
Specify the deadline and where/how to submit (email address, HR portal, physical submission).
State the consequence of non-submission (e.g., decision will be based on available records).

E. Notice of possible penalty (recommended)

Indicate that the incident may warrant discipline up to and including dismissal, if that is within the contemplated range.
Avoid predetermination; phrase it as “may warrant” or “may constitute.”

F. Invitation to a hearing/conference (either in the NTE or a separate hearing notice)

It is good practice to inform the employee that a conference may be held, or to schedule one.

G. Instruction on assistance/representation (context-dependent)

While private sector administrative investigations are not court trials, it’s good practice to allow the employee to be accompanied by a representative if company policy or CBA provides it, or where the matter is severe.

H. Professional tone and neutrality

The NTE should sound like a charge and request for explanation—not a verdict.

6) Time to respond: what “reasonable” means in practice

Philippine practice recognizes the employee must be given a reasonable opportunity to respond. A commonly used benchmark is at least five (5) calendar days to submit a written explanation. This period supports the idea that the employee should be able to:

read the charge,
consult records,
gather evidence,
seek advice, and
craft a coherent response.

Employers sometimes use shorter periods for minor infractions or urgent operational needs, but the shorter the time, the higher the risk that it will be viewed as unreasonable—especially where dismissal is in play or the allegations are complex.

Practical considerations that support reasonableness:

complexity of the issue,
volume of allegations,
whether documents are needed to respond,
employee’s work schedule and access to systems,
language barriers or literacy considerations,
whether the employee is on leave or medically unfit.

7) The “opportunity to be heard”: hearing vs. written explanation

A. Is a hearing always mandatory?

In Philippine labor due process for just cause termination, the employer must provide an opportunity to be heard. This can be satisfied in different ways depending on the circumstances.

For many cases, the written explanation plus a clarificatory meeting may satisfy the requirement.
A formal trial-type hearing is not always required; what matters is a meaningful chance to respond.

B. When a hearing becomes especially important

A live conference is strongly advisable when:

the employee requests it;
facts are contested and credibility matters;
dismissal is contemplated;
the employee’s written explanation raises substantial issues;
multiple witnesses are involved;
there is a need to confront specific evidence.

C. What the hearing should look like

A defensible administrative conference typically has:

clear agenda and charge recap,
presentation/clarification of evidence,
opportunity for the employee to respond and present evidence,
minutes or written record,
impartial facilitator (HR/discipline committee),
avoidance of intimidation.

8) The second notice: Notice of Decision (and termination notice if applicable)

After the employee has been heard, the employer issues a Notice of Decision stating:

findings (which allegations were established),
basis (evidence and policy violated),
penalty imposed and its effectivity,
for dismissal: termination date, final pay/clearance process, and return of company property, consistent with lawful practice.

The second notice is crucial because it shows the employer actually evaluated the response, not merely went through the motions.

9) Common procedural pitfalls that weaken an NTE and the discipline process

Vague allegations (“loss of trust,” “misconduct”) without particulars.
No cited rule/policy or rule applied retroactively.
Predetermined language (“you are guilty,” “you will be terminated”) in the NTE.
Unreasonably short deadline, especially for complex charges.
No real chance to be heard (ignoring the explanation, refusing requested conference).
Shifting accusations (decision based on grounds not stated in the NTE).
Evidence ambush (using undisclosed core evidence without giving a chance to address it).
Inconsistent penalty versus company precedent without explanation.
Biased investigator/decision-maker, especially where there is personal conflict.
Defective service (employee never received the NTE; no proof of receipt).

10) Service and documentation: proving the employee received the NTE

Because disputes often turn on what was received and when, employers should document service:

personal service with acknowledgment,
registered courier with proof,
email to official company email with delivery confirmation and follow-up,
HRIS portal notice with access logs,
barangay delivery or last-known address delivery for absconding employees (with caution and documentation).

If the employee refuses to receive or acknowledge, document refusal with witness statements and alternative service.

11) Relationship with “preventive suspension” and workplace investigation

A. Preventive suspension (distinct from penalty)

Preventive suspension is not a disciplinary penalty; it is a temporary measure to prevent the employee from interfering with an investigation, tampering with evidence, or posing risks. It must be justified by the nature of the alleged misconduct and workplace risk.

B. NTE timing

An NTE can be issued before or during preventive suspension. The employer should ensure the employee still has a meaningful opportunity to respond, including access to the relevant information needed to answer.

12) Substantive grounds and the NTE: aligning the charge with “just cause”

The NTE must align the alleged facts with a lawful ground and company rules. Common just causes include:

serious misconduct,
willful disobedience / insubordination,
gross and habitual neglect,
fraud or breach of trust,
commission of a crime against the employer or its representatives,
analogous causes.

A frequent mistake is charging “insubordination” when the issue is really poor performance, or charging “loss of trust” for rank-and-file roles without articulating why trust is essential to the position and how it was breached. The NTE should articulate the link between position, duty, act, and violated rule.

13) NTE in performance management (poor performance vs. misconduct)

A. Poor performance is not automatically misconduct

Performance issues are typically handled through performance improvement processes, coaching, documented targets, and evaluation. If an employer uses an NTE for poor performance, it should:

reference performance standards and prior coaching,
attach objective metrics,
show that standards were communicated,
show the employee had support and opportunity to improve.

B. When performance becomes a disciplinary matter

If the issue involves willful refusal to perform duties, falsification of outputs, repeated neglect despite support, or policy violations, an NTE framed as misconduct may be proper—if facts support it.

14) Special workplace contexts

A. Unionized workplaces / CBAs

Collective bargaining agreements may add procedural requirements (e.g., union representation, grievance steps). The NTE should align with both law and CBA.

B. Probationary employees

Probationary employees are still entitled to due process. Termination must be based on failure to meet standards that were made known at engagement, or other lawful grounds, and procedural fairness is still expected.

C. Managerial employees and “loss of trust and confidence”

Loss of trust and confidence is often invoked for employees who handle money, confidential data, or managerial prerogatives. The NTE must still provide the specific acts constituting the breach, not mere conclusions.

D. Remote work settings

For remote employees, NTEs often involve logs, VPN access, system activity, deliverables, and communications. Ensure:

accuracy of digital evidence,
data privacy compliance,
preservation of records and audit trails.

15) Data privacy considerations when drafting and serving an NTE

NTEs often contain sensitive personal data, witness statements, CCTV references, or customer information. Employers should:

limit distribution to those with a need to know (HR, investigator, deciding official),
redact unrelated personal data where feasible,
store records securely,
avoid public posting or shaming,
comply with internal retention policies and lawful processing.

16) Practical drafting guide: structure and language cues

A typical NTE structure:

Heading: “Notice to Explain” / “First Notice”
Statement of allegations (chronological, specific)
Policy/rule violated
Evidence summary and attachments list
Directive: submit written explanation by deadline
Notice of conference (schedule or “you may be required to attend”)
Neutral closing: “Failure to respond may result in a decision based on available information”
Signature block: HR/authorized officer

Language to avoid:

“You are hereby found guilty…”
“We have decided to terminate you…”
accusatory or inflammatory labels.

Language to use:

“It is alleged that…”
“Based on initial review…”
“You are required to explain why no disciplinary action should be taken…”

17) Legal consequences of defective due process

If there is a valid substantive ground for dismissal but the employer failed in procedural due process, Philippine labor practice typically results in the employer being liable for damages (often nominal damages) rather than reinstatement solely on procedural defect—though outcomes can vary depending on facts, equities, and proof.

If both substantive and procedural requirements fail, the dismissal can be illegal, with exposure to reinstatement and/or backwages and other monetary consequences as determined by adjudication.

18) Best practices for employers (risk-control checklist)

Ensure the rule violated is existing, lawful, and communicated (handbook acknowledgment helps).
Draft the NTE with specific facts, not labels.
Provide reasonable time to respond (commonly at least 5 calendar days).
Give a meaningful opportunity to be heard; document it.
Use an impartial investigator/discipline committee when feasible.
Keep consistent penalties; justify deviations.
Serve notices with proof of receipt.
Issue a clear decision notice that addresses the employee’s defenses.
Maintain confidentiality and data privacy discipline.

19) Best practices for employees receiving an NTE (response strategy)

Meet the deadline or request a reasonable extension promptly.
Address each allegation point-by-point with dates and specifics.
Attach supporting documents (emails, logs, medical certificates, approvals).
Clarify misunderstandings and provide context, but avoid admissions beyond the facts.
If necessary, request a conference to explain and to respond to evidence.
Keep a copy of everything submitted and proof of submission.

20) Conclusion

The Notice to Explain is not a mere formality; it is the first and most visible safeguard of procedural due process in Philippine employee discipline. A legally defensible NTE is specific, anchored in policy, gives reasonable time to respond, and is followed by a genuine opportunity to be heard and a reasoned written decision. Properly implemented, it protects employee rights while giving employers a fair, documented basis for discipline and—when justified—termination.