Response Time Limits for a Notice to Explain (NTE) under Philippine Labor Law

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In the Philippines, when an employer contemplates dismissing an employee for a just cause (serious misconduct, willful disobedience, fraud, etc.), the law requires procedural due process—better known as the twin-notice rule plus an opportunity to be heard. The first notice is the Notice to Explain (NTE), which tells the employee what they’re being charged with and gives them time to submit a written explanation.

That allotted time is called the “reasonable period” to respond. In practice and doctrine, “reasonable” means at least five (5) calendar days from receipt of the NTE—and sometimes more, depending on the case.

Legal bases (what says what)

Labor Code, Book VI (Termination of Employment) & its IRR. These set the due-process framework for just-cause dismissals.
DOLE Department Order No. 147-15 (2015) (amending the IRR of Book VI). This codifies the twin-notice process and adopts the minimum five-day response period.
Key Supreme Court cases
- King of Kings Transport v. Mamac (2007): “Reasonable opportunity” to respond to the first notice is at least five (5) calendar days.
- Perez v. Philippine Telegraph & Telephone (2009): Reaffirmed the 5-day benchmark and clarified hearing requirements.
- Agabon v. NLRC (2004) and Jaka Food Processing v. Pacot (2005): Explain consequences when procedure isn’t followed (see Consequences of defects, below).

Put simply: the five-day minimum today is both jurisprudential and administrative-rule standard.

The response-time rule, unpacked

1) The baseline

Minimum time: 5 calendar days from receipt of the NTE.
Why 5 days? To allow the employee to (a) understand the charge, (b) gather documents, (c) consult a lawyer/union officer, and (d) prepare a meaningful written defense.

2) Calendar days vs. working days

Calendar days are counted (includes weekends and holidays).
Day 1 is the day after the employee actually receives the NTE.
If the 5th day falls on a non-working day, the conservative and fair practice is to set the deadline on the next working day—but the legal minimum (calendar-day count) is still satisfied.

Example computation NTE received Monday, Sept 1 → count starts Sept 2 (Day 1) → Day 5 is Sept 6 (Saturday). Many employers accept Monday, Sept 8 as the filing deadline to avoid weekend issues.

3) When more than 5 days is needed

“Reasonable” can mean longer than 5 days where facts are complex, many documents must be pulled, witnesses are dispersed, or counsel/union representation requires coordination. A short extra extension (e.g., +3 to +5 days) is commonly granted when justified.

4) When less than 5 days is given

Below 5 days is presumptively unreasonable and is often struck down by labor tribunals/courts unless the employee still had a full and fair chance to explain (rare).
Emergency or “time-is-of-the-essence” situations do not erase the 5-day floor. Employers may preventively suspend (see below) instead of cutting the response period.

How the NTE should be served (when the clock starts)

Personal service with acknowledgment (best).
Registered mail to the last known address (keep the registry receipt and tracking).
Courier/email can work if the company can later prove receipt (read receipts, signed waybills, etc.).
If the employee refuses to receive or is absent, document the refusal/absence and serve to the last known address; the reckoning point is actual/constructive receipt shown by the proof of service.

What the NTE must contain (so the time runs meaningfully)

To make the 5-day period meaningful, the NTE must:

Clearly state the specific acts/omissions and the date(s)/place(s) they occurred.
Cite the company rule or policy (or law) allegedly violated.
Attach or identify the evidence (e.g., audit report, CCTV, complaint) or tell the employee where to inspect it.
Direct the employee to submit a written explanation within at least 5 calendar days.
Advise of the right to counsel and to a hearing/meeting upon request or if needed to clarify issues.
State possible sanctions, including dismissal if applicable.

If the NTE is vague or withholds key evidence, the 5-day clock is arguably not “reasonable” because the employee cannot defend properly.

Extensions: requesting and granting

How to request: Employee files a short written request before the deadline stating why more time is needed (e.g., “need to get bank slips,” “counsel is unavailable until next week,” “still securing affidavit”).
How employers decide: Consider complexity, document access, scheduling of counsel/union, and investigation timelines.
Good practice: Grant brief, specific extensions (e.g., until a particular date) and confirm in writing.

Preventive suspension (distinct from the NTE period)

If the employee’s continued presence poses a serious and imminent threat to company property or co-workers, the employer may place the employee on preventive suspension for up to 30 days while the investigation proceeds.
If a longer suspension is truly necessary, it should be with pay beyond 30 days.
Preventive suspension does not shorten the 5-day response time; it simply removes the employee from the workplace during the inquiry.

What happens after the response period

Clarificatory hearing/meeting

Not always mandatory, but required when requested by the employee, when there are contested facts, or when credibility is at issue.
The hearing is an informal, non-trial setting where the employee (with counsel/union officer) can explain, present evidence, and rebut.

The second notice (notice of decision)

After evaluating the written explanation (and the hearing, if any), the employer must issue a second written notice stating the findings, reasons, rule violated, and the penalty (or dropping the charges).
Timing: The law doesn’t impose a rigid number of days, but it should be issued within a reasonable time after the investigation closes, to avoid claims of undue delay.

Consequences of defects in the response period (or other due-process steps)

If just cause for dismissal exists but the employer fails to give a proper 5-day opportunity (or otherwise violates procedure), the dismissal is valid as to cause but the employer is liable for nominal damages (amounts set by jurisprudence).
If no just cause exists, the dismissal is illegal, and the employee may be entitled to reinstatement and backwages, regardless of procedural lapses.

Special situations

Probationary employees: For dismissal due to just cause, the same NTE timing applies. (For failure to meet standards, the employee must at least be informed of the standards and given due process.)
Authorized causes (redundancy, retrenchment, closure, disease under Art. 298/299): Different regime—requires 30-day written notice to both DOLE and the employee; the NTE/5-day rule is not the governing standard here.
Abandonment and AWOL: Employers should still issue an NTE to the last known address and give 5 days to explain; absence alone is not abandonment without intent to desert proven.

Employer checklist (practical compliance)

Draft a complete, specific NTE (see sample below).
Serve it properly; document receipt.
Allow ≥ 5 calendar days; consider justified extensions.
Provide access to evidence.
Hold a clarificatory hearing when requested/needed (allow counsel/union).
Evaluate fairly and issue a reasoned decision notice promptly.
Keep a clean paper trail (NTE, proof of service, explanation, minutes, decision).

Employee checklist (protect your rights)

Note the date/time of receipt—this starts the count.
Ask for evidence/access immediately if not attached.
Consult counsel/union; if needed, request extension in writing before the deadline.
Submit a detailed written explanation with documents/affidavits.
Request a hearing if facts are disputed or you need to confront evidence.

Sample language you can adapt

A. Notice to Explain (first notice)

Subject: Notice to Explain – [Alleged Violation / Charge] Dear [Employee Name],

This is to inform you of the following acts/omissions attributed to you: – On [date], at [place], you allegedly [describe specific conduct] in violation of [Company Policy § / Code of Conduct § / lawful order]. Attached/available for your review are [list of evidence; indicate how to access].

In view of the foregoing, please submit a written explanation why no disciplinary action, including dismissal, should be taken against you.

You are given at least five (5) calendar days from receipt of this notice, or until [DATE], to file your explanation. You may consult with counsel or your union representative. If you wish to request a clarificatory hearing/meeting, please say so in your written explanation.

Failure to submit within the period may result in resolution based on the records at hand.

Sincerely, [Authorized Officer]

B. Extension request (employee)

Subject: Request for Extension – NTE dated [date] Dear [HR/Officer], I respectfully request an extension of [X] days to submit my explanation. I need additional time to [obtain documents/consult counsel/secure affidavits]. I propose to submit on or before [DATE]. Thank you.

Frequently asked questions

Q1: Can a company give only 24–72 hours to explain? Not compliant post-King of Kings and DOLE DO 147-15. The safe legal floor is 5 calendar days.

Q2: If the employee files nothing within 5 days, can the company decide? Yes—after the lapse of the period and evaluation of available records, but the company must still issue the second notice stating the reasons for the decision.

Q3: Does the company have to hold a full-blown trial? No. A clarificatory (non-trial) hearing/meeting is sufficient, especially when requested or when facts are disputed.

Q4: Does the 5-day period apply to all disciplinary cases? It applies to just-cause dismissals and, as good practice, to serious disciplinary cases. For authorized causes, a different notice regime applies (30-day notice to DOLE and the employee).

Q5: What if the employee is on field assignment or abroad? Serve at the last known address and/or via provable electronic means; consider reasonable extensions to preserve fairness.

Common pitfalls (and how to avoid them)

Vague NTEs (no specific dates/acts). ➜ Be specific, attach/identify evidence.
Counting mistakes (using working days, starting count on receipt day). ➜ Use calendar days; start the day after receipt.
Refusing extensions reflexively. ➜ Assess reasonableness; deny only with good reason.
Skipping the second notice because no explanation was filed. ➜ Always issue the decision notice.
Late decision with no explanation. ➜ Decide promptly and document the evaluation timeline.

TL;DR

Give (and get) at least 5 calendar days from receipt of the NTE to file a written explanation.
The NTE must be specific and evidence-anchored; the employee must have real access to the materials to defend.
Extensions can be reasonable and are often appropriate.
After the period (and any hearing), issue a reasoned second notice.
If procedure is imperfect but cause exists, employer risks nominal damages; if cause is absent, dismissal is illegal.

This article is general information for the Philippine setting and not a substitute for tailored legal advice. If you want, I can adapt the sample NTE/decision notices to your company policy or a specific case.