(Philippine context; general legal information, not legal advice.)

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

A Notice to Explain (NTE)—often called a First Notice or Notice to Explain and Administer Due Process—is the written notice an employer serves on an employee to inform them of specific charges or incidents of misconduct or poor performance, and to require a written explanation before discipline is imposed.

In Philippine labor law, the NTE is the core document that starts procedural due process in employee discipline, especially in termination for just causes. Even when the penalty is not dismissal (e.g., suspension, final warning, demotion where lawful), the same fairness principles generally apply: the employee must know the accusations and be given a real chance to respond.

Failing to issue a valid NTE (or failing to give a genuine opportunity to explain) can make the employer liable for violation of due process, even if there is a valid substantive ground for discipline.

2) Legal framework (where the NTE fits)

A. Substantive vs procedural due process

Philippine law evaluates discipline/termination through two lenses:

Substantive due process: there must be a lawful ground (e.g., a just cause under the Labor Code).
Procedural due process: the employer must follow the required steps (notices + opportunity to be heard).

The NTE is part of procedural due process.

B. The “two-notice rule” for dismissal due to just causes

For termination based on just causes, Philippine doctrine requires:

First notice (NTE) – written charge and directive to explain
Opportunity to be heard – hearing/conference when required
Second notice (Notice of Decision/Termination Notice) – written decision stating the reasons after considering the explanation and evidence

The NTE is not the termination notice. A common error is issuing one memo that “charges and terminates” immediately—this typically fails procedural due process.

3) When an NTE is required (and when it isn’t)

Required (typical scenarios)

An NTE is generally required when the employer is imposing discipline based on alleged fault or accountability, including:

Just causes (e.g., serious misconduct, willful disobedience, gross and habitual neglect, fraud/willful breach of trust, commission of a crime against the employer or co-employees, analogous causes)
Company policy violations
Performance-related discipline (where the employee is blamed for failing standards, especially if it may lead to termination)
Administrative investigations that may lead to any penalty

Not the same tool: Authorized causes

For authorized causes (e.g., redundancy, retrenchment, closure not due to serious losses, installation of labor-saving devices, disease), the statutory procedure is different: 30-day notice to the employee and 30-day notice to DOLE, plus applicable separation pay rules.

An NTE is not the statutory substitute for those notices. Employers sometimes still use memos or consultations, but the legally required notices for authorized causes are distinct.

4) Core requirements for a valid NTE (what it must contain)

A valid NTE must be clear, specific, and complete enough to allow the employee to intelligently answer.

Requirement 1: A clear statement that the document is a charge and a directive to explain

It should unmistakably tell the employee:

This is a notice of the specific offense/incident; and
The employee must submit a written explanation (and/or attend a conference if scheduled).

Requirement 2: Specific facts—“who, what, when, where, how”

The NTE should state, at minimum:

Date(s) and time(s) of the incident(s)
Place/location (worksite, department, system, platform)
Specific act/omission alleged (not just conclusions like “insubordination”)
Context (what happened, sequence, involved persons)
Material particulars (e.g., which instruction was disobeyed, which rule was violated, which customer account was affected, what data was altered, what property was lost)

Vague NTEs—e.g., “You committed misconduct” without particulars—are a classic due-process defect.

Requirement 3: The rule/policy/law allegedly violated (and the possible sanction)

Best practice—and often critical for fairness—is to cite:

The company code of conduct/policy section(s), rules, or standards allegedly violated
If applicable, the classification (e.g., “serious misconduct,” “gross negligence,” “willful breach of trust”)
The possible penalty, including that the charge may result in termination (if dismissal is on the table)

This prevents “trial by surprise” and frames the seriousness of the charge.

Requirement 4: Disclosure of evidence or at least the basis of the accusation

The employee must be enabled to respond meaningfully. That usually requires:

A short summary of the supporting evidence (e.g., CCTV, audit trail, incident report, witness statements); and/or
Copies/excerpts or access to key evidence, when practicable (with reasonable confidentiality safeguards)

Total non-disclosure can undermine the reality of the opportunity to explain, especially when the case relies on technical logs, audit trails, or documents the employee cannot rebut without seeing.

Requirement 5: A reasonable time to explain (commonly at least 5 calendar days)

Philippine doctrine expects the employee be given a real opportunity, which includes reasonable time to prepare. As a widely applied standard in just-cause terminations, the period is commonly understood as at least five (5) calendar days to submit a written explanation, unless a longer period is reasonable under the circumstances (complex allegations, voluminous records, multiple dates, etc.).

Extremely short deadlines (e.g., “explain within 24 hours”) are frequently attacked as illusory due process unless the matter is exceptionally simple and the employee is still genuinely able to respond.

Requirement 6: Notice of the opportunity to be heard and how it will be conducted

The NTE should state that the employee:

May submit a written explanation, and
May be called to a hearing or conference (or that one is scheduled), and
May present evidence and/or identify witnesses, subject to reasonable rules

When is a hearing/conference required?

Philippine due-process doctrine does not always demand a full trial-type hearing, but it requires a meaningful chance to be heard. A hearing/conference is generally required when, for example:

The employee requests it; or
There are substantial factual disputes; or
Company rules or fairness considerations require clarifying questions, confronting inconsistencies, or verifying evidence

Even if no formal hearing is held, the process must still show that the employee’s side was actually considered.

Requirement 7: A neutral tone consistent with investigation (not a predetermined verdict)

The NTE should be framed as an allegation pending explanation, not as a conclusion:

Prefer: “It is alleged/reported that…”
Avoid: “You are guilty of…” or language that indicates the decision is already made

A “pre-judged” NTE can support a claim that due process was a sham.

5) Formal and service requirements (how it should be issued)

A. Written form and proper receipt

The NTE should be in writing and served in a way that can be proven, such as:

Personal service with employee’s acknowledgment; or
Registered mail/courier to the last known address; or
Company email or HRIS service if your rules recognize it and you can prove delivery and access (best paired with acknowledgment)

If the employee refuses to receive or sign, document the refusal with a witness and serve via alternative means.

B. Language and understandability

The NTE should be written in a language the employee can reasonably understand. If the workforce primarily operates in Filipino or a local language, a Filipino version or bilingual notice may be necessary for genuine comprehension.

C. Correct addressee and authority

It should identify:

The employee charged
The issuing authority (HR/disciplining officer)
The investigating unit or officer (if separate)
Contact details and submission instructions

6) The NTE’s relationship to preventive suspension

Employers sometimes place an employee under preventive suspension during investigation (commonly invoked when the employee’s continued presence poses a serious and imminent threat to life/property or may influence witnesses/evidence).

Key point: Preventive suspension does not replace the NTE. The employee must still receive an NTE and real opportunity to explain. If the employee is suspended, ensure the notice can still be received and answered (access to email, ability to submit a reply, scheduled conference options).

7) Special case: Performance issues (building a defensible NTE)

For performance-based discipline (especially termination for “gross and habitual neglect” or analogous causes), an NTE is stronger when the record shows:

Clear performance standards communicated in advance
Documented coaching, feedback, and evaluation results
A fair performance improvement process (when appropriate to the role and issue)
Concrete instances of failure (dates, outputs, metrics)

A bare accusation of “poor performance” without prior standards and documented deficiency often collapses into claims of arbitrariness.

8) Common defects that invalidate or weaken an NTE

Vagueness: no dates, no specifics, generic labels only
No real time to respond: unreasonable deadline without justification
No meaningful access to the basis: employee cannot rebut without seeing the core evidence
Predetermined language: NTE reads like a conviction
Mismatch of charge and penalty: NTE alleges one offense but decision punishes for another
Shifting accusations: termination notice relies on different facts not included in the NTE
No proof of service: employer cannot show employee received it
“First and final” memo: charging and terminating in the same notice (for just cause dismissal), skipping due process

9) What happens if the NTE (or process) is defective?

A. If there is a valid ground but due process is defective

Philippine doctrine generally treats this as procedurally infirm termination: the dismissal may be upheld as to the existence of cause, but the employer may be ordered to pay nominal damages for violating procedural due process.

B. If both ground and procedure fail

If there is no valid substantive cause, the termination is illegal dismissal, which may lead to remedies such as reinstatement and/or full backwages depending on the case posture and applicable rulings.

10) Practical checklist: “Valid NTE” minimum contents

A defensible NTE typically includes:

✅ Heading identifying it as Notice to Explain / Administrative Charge
✅ Employee name, position, department, employee number
✅ Clear narration of the incident(s): who/what/when/where/how
✅ Reference to violated company rules/policies (and/or just-cause classification)
✅ Statement that the act may warrant discipline up to and including dismissal (if applicable)
✅ Summary and/or attached supporting documents (or instructions on how to review them)
✅ Instruction to submit a written explanation within a reasonable period (commonly 5 calendar days)
✅ Notice of the right/opportunity to be heard; hearing details if scheduled, or process for requesting one
✅ Where/how to submit, and to whom
✅ Signature of authorized issuing officer; date of issuance
✅ Proof of service (acknowledgment, witnesses, or mailing documentation)

11) The NTE is only step one: the required follow-through

A valid NTE must be paired with a real process:

Receive and evaluate the employee’s written explanation
Conduct a conference/hearing when required or necessary
Make a decision based on substantial evidence
Issue a Second Notice/Notice of Decision stating:
- The findings
- The reasons
- The penalty
- The effectivity date (for termination, the termination date)

Without the second notice (in just-cause termination), the process remains incomplete.

12) Short model structure (format guide, not a one-size-fits-all template)

Subject: Notice to Explain – [Alleged Offense] Narration: On [date/time], at [place/system], it was reported/observed that you [specific act/omission]. Rule violated: This may constitute a violation of [policy section] and may be classified as [offense]. Evidence basis: The allegation is based on [incident report/CCTV/logs/witness statements], copies attached or available at [location]. Directive: You are directed to submit a written explanation within [reasonable period] from receipt of this notice. Opportunity to be heard: You may request a conference/hearing in writing, and you may present supporting evidence. Submission details: Submit to [name/HR email/office] no later than [date]. Signature / Service proof

A Notice to Explain is “valid” in Philippine labor practice when it is specific, evidence-grounded, properly served, and gives the employee a genuine chance to respond within reasonable time, as the first step of the legally expected due-process sequence before discipline—especially dismissal—is imposed.