1) What a “Notice to Explain” is in Philippine labor practice

A Notice to Explain (NTE)—often called a show-cause notice—is the employer’s written charge to an employee requiring the employee to explain why they should not be disciplined for an alleged offense. In Philippine labor law, the NTE is commonly used as the first written notice in the two-notice requirement for employee discipline and dismissal.

The NTE matters because it is the employee’s formal gateway to due process. It defines what the employee is accused of, frames the factual narrative the employer is relying on, and identifies the rule supposedly violated. When the NTE is incorrectly tagged—for example, labeled as “Gross Neglect” when the alleged act looks like “Simple Negligence,” or tagged as “Fraud” when the facts describe “Unauthorized Use” at most—the employee’s ability to defend themselves is compromised. The tagging is not cosmetic: it determines severity, elements, evidence needed, potential penalty, and sometimes even reputational harm.

2) “Incorrect violation tagging” explained

Incorrect violation tagging happens when the NTE:

Names the wrong offense under the company Code of Conduct (e.g., “Dishonesty” instead of “Procedural Lapse”);
Uses a more severe category than what the described facts could reasonably support (e.g., “Serious Misconduct” for an isolated minor breach);
Cites the wrong policy provision, wrong section number, wrong standard, or wrong rule altogether;
Conflates multiple offenses without clarifying which acts correspond to which violation;
Changes the accusation midstream (initially “Attendance Fraud,” then later “Insubordination”) without re-notice;
Describes facts that do not match the tag (the narrative and the legal/disciplinary label diverge).

This issue is common where template NTEs are used, where HR adopts a “maximally broad” violation label, or where supervisors pre-judge severity before investigating.

3) Why correct tagging matters: the relationship between accusation and the right to be heard

3.1 The right to know what you are charged with

Due process in discipline is not just “you were told something.” The employee must be given a fair opportunity to understand the charge and respond meaningfully. If the NTE tags an offense with specific elements (e.g., intent, malice, willful refusal, fraud) while the facts described do not clearly allege those elements, the employee is forced to defend against a different case than what the employer can later prove.

3.2 The “charge controls the defense”

In practice, employees tailor defenses around:

Elements of the offense (intentional vs. negligent, willful vs. inadvertent);
Available evidence (time records, emails, CCTV, system logs, witnesses);
Context and mitigating factors (training, workload, unclear SOPs, first offense);
Penalty standards (company matrix; progressive discipline; gravity of offense).

Wrong tagging distorts each of these.

3.3 Reputational and career impact

Certain tags—dishonesty, fraud, serious misconduct, insubordination—carry stigma that can affect internal mobility, references, industry standing, and future employment. Mislabeling can therefore cause collateral harm even if the employee is later cleared or penalized for a lesser offense.

4) Due process framework for discipline and dismissal

4.1 Substantive due process vs. procedural due process

Substantive due process asks: Is there a valid and just cause? Is the penalty proportionate?
Procedural due process asks: Was the employee given proper notice and opportunity to be heard?

Incorrect violation tagging affects both:

Substantively, it can indicate mischaracterization of conduct and lead to an excessive penalty.
Procedurally, it can undermine the adequacy of notice and fairness of the hearing.

4.2 The two-notice rule (conceptual)

While company processes vary, the classic structure is:

First notice (NTE): Written charge specifying acts/omissions and the rule violated, and requiring a written explanation.
Opportunity to be heard: Not always a trial-type hearing, but a real chance to respond, submit evidence, and clarify.
Second notice (decision): Written decision stating facts found, rule violated, and penalty imposed.

If the employer changes the nature of the accusation, best practice—and fairness—requires re-notice (a revised NTE) so the employee can answer the correct charge.

5) What an NTE must contain for fairness (and how wrong tagging breaks it)

A legally sound, fair NTE typically includes:

Specific factual allegations
- Dates, times, places, transactions, systems, documents involved.
- What exactly the employee did or failed to do.
Clear rule/policy reference
- The exact provision(s) allegedly violated (Code of Conduct, SOP, memo).
- The classification of the offense and its elements.
Possible consequence
- The employee should be aware that discipline (up to dismissal if applicable) is being considered.
Reasonable period to respond
- Time to prepare an explanation and gather evidence.

Incorrect violation tagging can create:

Vagueness (“you committed dishonesty” without stating the supposed false statement);
Mismatched elements (tag requires intent, facts allege only mistake);
Ambiguity (multiple tags with no mapping of facts to each);
Prejudgment (tag implies guilt before investigation).

6) Common incorrect tagging patterns and how employees can analyze them

Pattern A: “Serious Misconduct” for performance or minor policy errors

Misconduct generally implies improper behavior; serious misconduct implies gravity and often wrongful intent. If the story reads like performance lapse, misunderstanding, or isolated error, this mismatch is a red flag.

Employee analysis checklist

Does the NTE allege willful or wrongful intent?
Does it show how the act is “serious” (risk, harm, repetition, breach of trust)?
Is there evidence of deliberate wrongdoing, not mere inefficiency?

Pattern B: “Gross Neglect” when there’s a single lapse with context

“Gross” implies severe carelessness or repeated negligence depending on policy and circumstances. If it was a first-time lapse under unusual conditions (unclear SOP, excessive workload, missing tools), the tag may be inflated.

Pattern C: “Dishonesty/Fraud” for procedural noncompliance

Dishonesty/fraud typically involves falsehood or deception. Employers sometimes label as “dishonesty” what is actually “failure to follow procedure” (e.g., incomplete documentation) even without proof of intent to deceive.

Key question: Where is the alleged lie, falsification, concealment, or scheme?

Pattern D: “Insubordination” for questioning instructions or raising concerns

Insubordination often implies willful refusal to obey lawful and reasonable orders. If the employee sought clarification, raised safety/legal concerns, or complied but differently, the tag may be inaccurate.

Pattern E: “Breach of trust” used as a catch-all for any issue

Breach of trust is usually tied to roles of confidence or acts that genuinely erode trust. If the job is not a position of trust or the act is minor/unintentional, the tag may be overbroad.

7) Legal consequences of incorrect tagging

7.1 Exposure to procedural due process findings

If the employee is disciplined or dismissed based on a charge that was not properly noticed, the employer risks a finding that the employee was denied due process. A defective first notice can taint the process, especially if the final decision penalizes the employee for an offense not fairly alleged in the NTE.

7.2 Exposure to findings of disproportionate penalty

Even when an infraction occurred, mis-tagging can push the company toward an excessive sanction. The more severe the label, the more severe the expected penalty; if the facts support only a minor offense, a harsh penalty becomes vulnerable.

7.3 Exposure to inconsistency and arbitrariness

If comparable cases are tagged and penalized differently, employees can argue unequal treatment or arbitrary enforcement—particularly relevant where a company has a penalty matrix or progressive discipline system.

7.4 Defamation-like reputational concerns (workplace context)

Wrongly calling someone “dishonest” or a “fraudster” in internal communications can be deeply damaging. While internal HR processes are typically confidential, leaks, broad circulation, or unnecessary publication can create legal and practical risk. Employees should treat this carefully and focus on due process and accuracy rather than escalating rhetoric.

8) Employee rights and practical defenses when the violation tag is wrong

8.1 Demand specificity (without being combative)

In the written explanation, the employee can:

Note that the NTE’s label does not match the alleged acts;
Request the employer clarify which exact acts correspond to each cited rule;
Ask for the specific policy provision and evidence being relied on (as available under company process).

8.2 Deny the incorrect elements; address the facts separately

A strong approach is to split the response:

Response to the tag/elements: “No intent to deceive; no falsification; no willful refusal…”
Response to facts/context: timeline, steps taken, constraints, instructions received, tools available, training, prior practice.

8.3 Preserve your own narrative and evidence

Employees should attach or reference:

Emails/messages/instructions
Time records, logs, screenshots (with source/time)
Witness statements (if allowed)
SOP copies, prior approvals, training records
Proof of workload, system downtime, resource constraints

8.4 Invoke proportionality and progressive discipline

If the alleged act, even if true, is minor or first offense, the employee can argue:

Correct classification is a lesser offense under the Code;
Applicable penalty should be corrective (coaching, reminder, warning) rather than punitive.

8.5 Raise “charge variation” if the accusation shifts

If the employer later shifts to a different violation, the employee can document:

The original NTE did not charge that offense;
No fair opportunity was provided to answer that new accusation;
Any decision on a new offense should require fresh notice and opportunity to respond.

8.6 Ask for access to the evidence used against you (where process allows)

While company processes vary, fairness improves when the employee can review key evidence. Even if full disclosure is not granted, the employee can request at least:

Incident report summary
Specific documents or logs referenced
Names of complainants/witnesses (subject to policy)

9) Employer obligations and best practices (what “good process” looks like)

Employers reduce risk when they:

Investigate first before choosing the tag, or at least treat the initial tag as tentative;
Use fact-based allegations rather than conclusions (“you falsified” vs “record X differs from log Y”);
Cite the correct, specific policy provision;
If mis-tagging is discovered, issue a corrected or amended NTE with time to respond;
Ensure the decision notice addresses:
- Facts established
- Rule violated
- Reasoning for classification
- Mitigating/aggravating factors
- Penalty basis (matrix/proportionality)

A corrected process is not a sign of weakness; it is a sign of procedural integrity.

10) Hearing and conference issues: what to watch for

Even when a hearing is informal, employees should ensure:

The employer states clearly the charge being heard;
The employee is allowed to explain, ask clarificatory questions, and submit documents;
Minutes/notes reflect the employee’s key defenses;
If the panel focuses on an offense not in the NTE, the employee notes that this is outside the charge and requests re-notice.

11) Drafting a high-quality employee explanation when the tag is incorrect (structure)

A practical structure:

Opening
- Identify the NTE date, reference number, and alleged incident.
Preliminary statement on incorrect tagging
- State respectfully that the violation tag(s) cited do not match the factual allegations and/or elements are not pleaded.
Chronology of facts
- Provide a precise timeline; avoid opinions; attach proof.
Point-by-point rebuttal
- For each allegation: admit/deny; explain context; show evidence.
Element-by-element response (if the tag implies intent)
- Address intent, knowledge, willfulness, benefit, concealment—deny where unsupported.
Mitigation and proportionality
- Good faith, lack of training, ambiguous instruction, system issues, first offense, corrective actions already taken.
Procedural requests
- Request clarification of the exact rule, access to evidence, and opportunity to be heard.
Closing
- Restate that discipline should be based only on accurately characterized facts and applicable rules.

12) Special situations

12.1 Multiple tags in one NTE

Employers sometimes cite many violations “just in case.” This can be unfairly broad. Employees can ask the employer to specify:

Which acts correspond to which tags;
Which tag is primarily being pursued for discipline.

12.2 Administrative or technical errors in citation

If the NTE cites the wrong section number but the narrative clearly describes an offense, employers may treat it as harmless. But if the wrong citation causes real confusion about the charge, employees should raise that confusion clearly.

12.3 Contractual employees, probationary employees, and due process

Even where security of tenure rules differ in application, fair process remains important in discipline. Incorrect tagging still creates risk of unfairness and arbitrariness.

12.4 Data privacy and confidentiality

If the NTE includes unnecessary personal data or circulates beyond those who need to know, employees can raise confidentiality concerns. The core due process issue remains: accuracy and fairness in charges.

13) Remedies and escalation options in practice

Depending on the situation and company policy, an employee may:

Seek internal grievance or appeal mechanisms (if provided);
Request HR review for reclassification of the offense;
Document concerns for potential external action where warranted.

The most effective approach often starts with a well-written explanation that:

Disproves the severe tag’s elements,
Provides coherent facts and evidence,
Frames the correct classification and proportionate outcome.

14) Key takeaways

An NTE is not just a formality; it defines the case you must meet.
Incorrect violation tagging can undermine notice, distort the defense, and inflate penalties.
Employees should respond both to facts and to the elements implied by the tag, preserving evidence and requesting specificity.
Employers should correct mis-tagging through amended notice and ensure decisions match properly noticed charges and proven facts.
Accuracy in tagging is a core part of workplace due process, not a technical detail.