Notice to Explain (NTE) Served While an Employee Is on Sick Leave in the Philippines: A Comprehensive Guide (2025)

This material is for educational purposes only and is not a substitute for individualized legal advice. Philippine jurisprudence is cited where helpful; case names are given in full at first mention for ease of follow-up reading.

1. Why the Question Matters

The intersection of disciplinary due-process requirements and an employee’s statutory right to sick leave (or medically justified absence) is a recurring operational and litigation flashpoint in the Philippines. Employers worry that delay will compromise discipline; employees fear that an NTE served while they are ill is a trap. Understanding how the two-notice rule adapts to medical absences avoids both unlawful dismissal claims and management paralysis.

2. Legal Foundations

Source	Key Provisions
Labor Code of the Philippines (PD 442, as amended)	Art. 297-299 (formerly 282-284) on just and authorized causes for dismissal; Art. 292(b) on employer’s right to promulgate rules.
Department Order (D.O.) No. 147-15, series of 2015	Codifies twin-notice and hearing requirements and sets the “reasonable period” to answer the NTE at “at least five (5) calendar days”.
SSS Law (RA 11199) & PhilHealth Law (RA 11223)	Guarantee sickness benefits; indirectly relevant when absence is supported by medical certification.
Civil Code	Art. 19, 20, 21 on abuse of rights—often invoked for nominal or moral damages.
Supreme Court jurisprudence	Explains how due process applies when the employee is not physically present (see Section 5).

3. The Basic Two-Notice Framework

First Notice – Notice to Explain / Show-Cause Memo
- States the specific acts/omissions and company rule or legal basis violated.
- Gives the employee ≥ 5 calendar days to submit a written explanation.
Second Notice – Notice of Decision
- Issued after evaluating the explanation (or its absence) and after a hearing or conference if requested/required.
- Communicates the finding, the evidence relied upon, and the penalty imposed.

An administrative conference or hearing is not always mandatory, but it becomes so when requested or when there are contested facts (e.g., Perez v. Philippine Telegraph & Telephone Co., G.R. No. 152048, 2004).

4. May an NTE Be Sent While the Employee Is on Sick Leave?

Yes. The law does not forbid issuing or serving an NTE during an authorized leave, including sick leave. What matters is whether the manner and timing of service still afford the employee a genuine, reasonable chance to be heard.

Practical reasons for immediate service include:

Imminent lapse of the 30-day prescriptive period for certain infractions under company rules.
Preservation of evidence and witness recollection.
Ongoing threat to company property or operations.

5. Service Methods Acceptable Under Philippine Due Process

Personal Service
- Handed to the employee in hospital/home if feasible; obtain signed receipt.
Registered Mail (Rule 13, Rules of Court by analogy)
- Send to the employee’s last known address and/or address on 201 file.
- Keep registry receipts and return card (or tracking printout).
Private Courier or Service Provider
- Obtain official waybill + delivery confirmation.
Email or Digital Platforms
- Allowed if previously used by the employee for official correspondence (e.g., company email, verified messaging workspace).
- Print e-mail headers/screenshots for the record.
Multiple-Mode (“Belt-and-Suspenders”) Approach
- DO 147-15 encourages redundant service where the employee is unavailable.

Key Point: Service is considered complete upon actual receipt or after five (5) days from first notice of the registered-mail delivery, whichever comes first. (Derived from King of Kings Transport v. Mamac, G.R. No. 166208, 2007, applied by analogy.)

6. Adjusting the “Reasonable Period” When the Employee Is Ill

Floor: 5 calendar days (DO 147-15).
Ceiling: Flexible—courts look at totality of circumstances, including the seriousness of the offense, the length of illness, and complexity of issues.

Case Illustration In Agabon v. NLRC (G.R. No. 158693, 2004), the Court reiterated that while five days is the minimum, refusing an extension that is reasonably justified (e.g., hospitalization) renders the dismissal procedurally defective, entitling the employee to nominal damages—even if the dismissal is substantively valid.

7. Conducting the Administrative Hearing

Offer Alternative Modes
- Written position paper in lieu of live appearance.
- Video conference or phone call, subject to capacity and consent.
Postponement for Medical Reasons
- One or two resets are usually seen as reasonable.
- Employer may require medical certificate stating fitness to participate.
Ex Parte Proceedings
- Legitimate only if: (a) Employee was properly served but refuses/fails to appear without valid justification; and (b) Record reflects continued good-faith efforts by management to accommodate.

8. What If the Employee Never Receives the NTE?

Burden of Proof is on the employer to show valid service.
If service to the address on file is returned “moved out” or “unknown”, send to any secondary address disclosed in payroll records, emergency contact sheets, or the SSS/PhilHealth enrolment forms.
Continued non-receipt after diligent efforts may justify proceeding ex parte, but best practice is to (a) post the NTE on the company bulletin board, and (b) document all attempts in an affidavit of service.

9. Interaction With Statutory Sick Leave and SSS/PhilHealth Benefits

Service of an NTE does not suspend statutory sickness benefits.
An employee on SSS sickness benefit is not obliged to travel to hearings; remote or written participation is preferred.
Employer cannot offset sickness benefit payments against potential wage deductions arising from the administrative case unless adjudged and with the employee’s consent.

10. Consequences of Procedural Missteps

Violation	Typical Result (per jurisprudence)
NTE served but < 5 days to answer	Nominal damages ₱30 000–₱50 000 (e.g., Jaka Food Processing Corp. v. Pacot, G.R. No. 151378, 2005).
No proof of valid service while on sick leave	Dismissal reversed; reinstatement + backwages.
Hearing held despite medical certification of incapacity	Dismissal upheld substantively but with damages for procedural infirmity.
Retaliatory dismissal for legitimate sick-leave use	Illegal dismissal; full backwages, reinstatement or separation pay in lieu, moral/exemplary damages.

11. Best-Practice Checklist for Employers (2025)

Verify Address – Cross-check 201 file, payroll bank details, and emergency contact.
Serve in Redundant Modes – Personal + registered mail + email same day.
Attach Evidence – CCTV clips, audit sheets, etc., to show transparency.
Offer Extensions – Minimum 5 days; longer if doctor-certified.
Document Communications – Keep email read-receipts and courier tracking.
Hold Non-Adversarial Meetings – Allow representative or counsel if requested.
Issue Speaking Decision Notice – Cite facts, rules violated, and reasoning.

12. Practical Tips for Employees

Notify Promptly – Email HR your medical certificate and contact number.
Acknowledge Receipt – Even if you need more time, send a “Received, requesting extension until …” reply.
Submit Written Explanation – Focus on facts; attach supporting documents (doctor’s note, prescriptions, etc.).
Attend Hearings Remotely – Offer video or phone participation.
Keep Copies – Preserve every notice, email, and Viber/SMS screenshot.

13. Frequently Asked Questions

Question	Short Answer
Can I ignore the NTE until I return to work?	Not advisable. Courts view deliberate inaction unfavorably; request an extension instead.
How long can my employer wait before issuing the NTE?	There is no statutory deadline, but stale issuance (e.g., months later without explanation) may be deemed bad faith.
What if I’m in the ICU or otherwise incapable?	Employer should wait until medically fit or allow explanation through next of kin; strict five-day rule pauses.
Can my employer visit me in the hospital?	Yes, but only to serve the notice; discussion of merits without counsel may violate your rights.
Is service via Facebook Messenger valid?	It may be, if that platform is used in official company communications and authenticity can be proven.

14. Key Supreme Court Decisions to Read

Perez v. Philippine Telegraph & Telephone Co. (G.R. No. 152048, April 7 2009) – Administrative hearing standards.
King of Kings Transport v. Mamac (G.R. No. 166208, June 29 2007) – Valid service via registered mail.
Agabon v. NLRC (G.R. No. 158693, November 17 2004) – Due process vs. just cause distinction.
Jaka Food Processing Corp. v. Pacot (G.R. No. 151378, March 10 2005) – Nominal damages for procedural flaws.
Abbott Laboratories v. Alcaraz (G.R. No. 192571, July 23 2013) – Global companies and procedural due process.
Univ. of Santo Tomas v. De la Cruz (G.R. No. 221096, June 17 2020) – Extended leave and continuation of disciplinary action.

15. Conclusion

Serving a Notice to Explain while an employee is on sick leave is lawful in the Philippines, provided that the employer (a) follows recognized modes of service, (b) grants a genuinely reasonable period to respond, and (c) remains flexible about the manner of hearing. The guiding thread across statutes, regulations, and case law is substantial fairness—real, not technical, opportunity to be heard. Employers who document good-faith efforts need not fear invalidation; employees who communicate proactively protect both their health and their job security.

Need tailored advice? Labor rules evolve, and nuances—CBA provisions, company policy, industry codes—can change outcomes. Consult a Philippine labor-law practitioner for situation-specific guidance.