Notice to Explain (NTE): Issuance Time Frame under Philippine Labor Law

1. What an NTE Is—and Why Timing Matters

An NTE is the first written notice an employer must give an employee who is being charged with an infraction that may lead to dismissal or any serious disciplinary sanction. It signals the start of procedural due process—the constitutional and statutory guarantee that no worker may be disciplined without being heard.

First notice (NTE) – informs the employee of the specific acts or omissions complained of and directs the employee to submit a written explanation.
Second notice (Notice of Decision) – served only after the employer has evaluated the explanation and evidence.

The Constitution (Art. III, Sec. 1) protects against deprivation of property without due process, and the Labor Code (Art. 297, formerly 282) and DOLE Department Order No. 147-15 operationalize that guarantee in the employment context.

2. Is There a Statutory Deadline?

No provision in the Labor Code expressly fixes the number of days within which the NTE must be served after the employer learns of the offense. What the law imposes is reasonableness, judged on a case-to-case basis. The guiding phrase in DO 147-15 is that the notice must be given “within a reasonable period from the commission or discovery of the offense.”

3. The Supreme Court’s 5-Calendar-Day Benchmark

While not legislated, jurisprudence has crystallized a five-calendar-day yardstick for the period given to the employee to reply. Because that same case law stresses swiftness in affording this opportunity, the five-day rule has become the practical gauge for when the NTE should be released.

Leading Case	Core Doctrine on Timing
King of Kings Transport v. Mamac (G.R. No. 166208, June 29 2007)	Employees must be given at least five (5) calendar days from receipt of the NTE to prepare a written explanation and gather evidence/representation. The Court underscored that the NTE itself must be served promptly so as not to defeat speedy due process.
Agabon v. NLRC (G.R. No. 158693, Nov 17 2004)	Awarded nominal damages where notice and hearing were not timely; emphasized that procedural lapses do not invalidate dismissal but entail monetary sanction.
PLDT v. NLRC & Abucay (G.R. No. 117115, Aug 23 1995)	An employer may not sit on alleged misconduct; delay in issuing notice signals condonation or waiver.
Abbott Laboratories v. Alcaraz (G.R. No. 192571, July 23 2013)	Re-affirmed five-day standard; stressed that “preventive suspension” or other interim measures do not excuse failure to furnish timely NTE.

Take-away: Courts will ask two questions: (1) Was the NTE served without undue delay after the employer reasonably verified the violation? and (2) Was the employee given at least five (5) calendar days to answer? A “yes” to both generally satisfies the timing aspect of due process.

4. Counting the Days: Practical Rules

Start point for issuance
- From commission – if the act is blatant and immediately known (e.g., caught on CCTV).
- From discovery – if the wrongdoing surfaces only after audit, investigation, or third-party complaint.
Reasonableness factors
- Complexity of the fact-finding (e.g., financial fraud vs. simple tardiness).
- Need to gather corroborative documents or witness statements.
- Whether the employee is on leave or difficult to locate (COVID-19 lockdown cases illustrate allowable flexibility).
Stop-gap options
- Preventive suspension (up to 30 days, extended with pay) may be imposed simultaneously with, or shortly after, the NTE when the employee’s continued presence poses a threat. Suspension does not suspend the five-day answer period unless justified by force majeure.
- Interim directives (e.g., temporary reassignment) are permissible but never a substitute for the NTE.

5. Interplay with Prescriptive Periods

Disciplinary offenses themselves generally do not prescribe under the Labor Code (prescription mainly covers the employee’s monetary claims or illegal-dismissal actions). Nonetheless, an employer that sleeps on its right to discipline may be found to have condoned the infraction, especially where:

The offense is minor and the employer delayed months or years before issuing an NTE.
The employee has since been promoted or commended, evidencing waiver.

6. Effect of Late or Defective NTE

Scenario	Legal Consequence
NTE served beyond a reasonable time but employee still given a fair chance to explain	Dismissal may stand, but employer exposed to nominal damages (now ₱30,000–₱50,000 range, per recent cases).
Employee given less than 5 days to reply, but actually submitted a detailed answer or attended hearing without objection	Courts sometimes excuse the flaw as harmless error, but nominal damages still typical.
No NTE at all	Dismissal valid only if ground is proven; employer pays full backwages if dismissal unjust—not merely irregular. If ground valid but process absent, dismissal upheld but employer pays nominal damages.

7. Frequently Litigated Issues

“Same-day” NTE and hearing – Per King of Kings and Red Carpet cases, asking the employee to explain and appear at a hearing on the same day violates the five-day rule.
Electronic NTE – Acceptable if company rules allow and the employee actually receives it; best practice is to secure acknowledgment or proof of opening.
Group NTEs – Allowed only for incidents involving collective misconduct (e.g., wildcat strike). Each employee must still be given individual opportunity to explain.
Probationary employees – Still entitled to NTE and five-day reply period if dismissal is for misconduct; a separate rule applies for failure to meet performance standards (notice within a reasonable time before end of probation).

8. Compliance Checklist for Employers

Verify facts promptly; document discovery date.
Draft NTE:
- Specific charges, rule violated, possible penalty.
- Directive: “Submit a written explanation within five (5) calendar days from receipt.”
Serve NTE personally; if refused, record “refused to sign” and send by registered mail/email.
Document receipt date to anchor the five-day period.
Schedule hearing after the reply deadline (or earlier if employee waives).
Evaluate—issue Notice of Decision promptly (usually within 30 days from NTE).
Keep the paper trail; courts favor employers that can show timeline compliance.

9. Best-Practice Timetable (Illustrative)

Day	Action
Day 0	Employer discovers infraction (or fact-finding completed).
Day 1	Issue and serve NTE.
Day 6	End of 5-day reply period.
Day 7–9	Conduct administrative conference/hearing.
Day 10–15	Deliberate; draft and serve Notice of Decision.

Adjust as warranted by complexity, holidays, or force majeure; always record reasons for any extension.

Key Takeaways

No hard-coded statute sets the deadline, but “reasonable promptness” governs.
The five-calendar-day rule—originating from Supreme Court jurisprudence—is the gold standard both for employee response time and for gauging employer promptness in issuing the NTE.
Non-compliance does not automatically void dismissal, but it exposes the employer to nominal damages and reputational risk.
Rigorously documenting the timeline—from discovery to NTE to final notice—remains the safest shield against illegal-dismissal claims.