Notice to Explain (NTE) in Philippine Employment Law
Everything employers and employees need to know, plus a ready-to-use template
1. Legal Foundations
| Key Authority | What it Says |
|---|---|
| Article 297 [formerly 282] of the Labor Code | Lists the just causes for dismissal (serious misconduct, gross neglect, fraud, etc.). |
| Article 299 [formerly 284] | Covers dismissal for authorized causes (redundancy, retrenchment, closure, disease). |
| Constitution, Art. III, §1 | Protects employees’ right to due process. |
| DOLE Dept. Order No. 147-15 (2015) | Codifies the “two-notice rule” and hearing requirement. |
| Jurisprudence | King of Kings Transport v. Mamac (G.R. 148208, Jun 15 2005) clarifies the five-calendar-day minimum for reply; Perez v. PT&T (G.R. 152048, Apr 7 2009) emphasizes that form matters as much as substance. |
2. Due-Process Framework (“Twin-Notice Rule”)
Notice to Explain (First Notice)
- Must describe the act/omission and the rule or policy violated.
- Give the employee at least five (5) calendar days to submit a written explanation and evidence.
- State that dismissal is only a possibility, not a foregone conclusion.
Opportunity to be Heard
- A formal hearing is optional but required if the employee asks for it in writing, the CBA or company policy requires it, or substantial disputes of fact exist.
Notice of Decision (Second Notice)
- Issued after evaluating the employee’s explanation and evidence.
- Must clearly state the findings of fact, the legal basis, and the penalty (dismissal, suspension, etc.).
3. Essential Elements of a Valid NTE
| Element | Practical Tip |
|---|---|
| Specific narration of facts | “On 24 July 2025 at 2:15 p.m., you were recorded punching a co-worker…” |
| Reference to violated rule | Quote the exact provision of the Code of Conduct. |
| Directive to explain | Use clear language: “Submit a written explanation within five (5) calendar days…” |
| Advisory on possible sanctions | Enumerate the range—from reprimand to dismissal—to show openness. |
| Receipt & acknowledgment | Obtain signature; if employee refuses, have two witnesses sign. |
| Delivery method | Personal service; if employee is absent or on AWOL, send by registered mail and e-mail. |
4. Time Frames & Counting Rules
- Start counting on the day after receipt (Rule 13, Rules of Court analogy).
- The 5-day period includes weekends/holidays unless the last day falls on one—then move to the next working day.
- Authorized-cause dismissals (e.g., redundancy) require 30-day advance written notice to both employee and DOLE; the “explain” element is not strictly demanded but good-faith consultation is still encouraged.
5. Common Pitfalls & How to Avoid Them
| Pitfall | Consequence | Fix |
|---|---|---|
| Giving only 24-hour reply period | Procedural due-process violation → nominal damages (₱30 k typical) even if dismissal is for just cause. | Follow the 5-day rule. |
| Vague accusations (“poor performance”) | NLRC may order reinstatement due to lack of notice specificity. | Detail acts, dates, KPI breaches. |
| Back-dating or pre-signing NTEs | Possible illegal dismissal plus moral & exemplary damages. | Issue NTE promptly after discovery. |
| Skipping service when employee is AWOL | Service is deemed incomplete; dismissal reversed. | Send registered mail to last known address and e-mail. |
6. Data Privacy & Confidentiality
- Employee explanations become HR records subject to the Data Privacy Act (DPA).
- Store NTEs securely; restrict access to “need-to-know” HR/legal staff.
- When submitting to NLRC, redact personal identifiers not necessary to resolve the case.
7. Sample Notice to Explain
[Company Letterhead]
Date: 31 July 2025 To: Juan Dela Cruz, Data Analyst From: Maria Reyes, HR Manager Subject: NOTICE TO EXPLAIN — Alleged Serious Misconduct
Dear Mr. Dela Cruz:
- On 24 July 2025 at approximately 2:15 p.m., CCTV footage shows you striking your co-worker, Mr. Pedro Santos, inside the Operations Room. Immediately after, Mr. Santos was brought to the clinic for a nosebleed.
- Your act appears to constitute Serious Misconduct under Section 7(b) of the Employee Code of Conduct and a Just Cause for termination under Article 297(a) of the Labor Code.
- In accordance with DO No. 147-15, you are hereby directed to submit a written explanation within five (5) calendar days from receipt of this notice, or not later than 05 August 2025, stating why you should not be disciplined up to and including dismissal. You may attach any evidence or written statements of witnesses.
- You may also request a formal hearing in writing within the same period. Should you elect not to request one, we will decide the matter based on the records submitted.
- Failure to submit your explanation within the prescribed period will be construed as a waiver of your right to be heard, and the company will resolve the matter based on available evidence.
Please acknowledge receipt by signing below.
Sincerely,
[signed] Maria Reyes Human Resources Manager
I acknowledge receipt of this Notice to Explain:
Juan Dela Cruz – Employee Date: ______________________
8. Adaptations for Other Scenarios
| Scenario | Tweaks |
|---|---|
| AWOL | Send NTE by registered mail + e-mail; give 5 days from actual receipt or 10 days from mailing, whichever is earlier (per Jaka Food Processing guidance). |
| Probationary employees | Same due-process steps; add evaluation records to show failure to meet standards. |
| Union members | Check CBA for additional procedures, but statutory due process still applies. |
| Harassment allegations | Mention the Safe Spaces Act or Anti-Sexual Harassment Act in the rule-citation portion. |
9. Record-Keeping & Audit Checklist
- Copy of signed NTE (or proofs of service).
- Employee’s written explanation & attachments.
- Minutes or waiver of hearing.
- Investigation report & recommendation.
- Second Notice (Decision) with proof of service.
- DOLE report (for authorized cause) or logbook entry.
- Preservation of CCTV or digital evidence for at least three (3) years.
10. Quick FAQ
| Question | Short Answer |
|---|---|
| Can I use e-mail only? | Yes, if policy allows and you can prove receipt (read-receipt or explicit reply). |
| What if the employee refuses to sign? | Have two witnesses sign “refused to sign” and date. |
| Is 48 hours enough reply time? | Supreme Court precedent says no—use 5 calendar days. |
| Do project-based workers get NTEs? | Only for just-cause dismissal before project end. End-of-project separation uses completion notice, not NTE. |
Takeaways
- The NTE is not a mere formality; it is the cornerstone of constitutional and statutory due process in Philippine labor law.
- Following the 5-day rule, stating facts & violated rules with specificity, and documenting service are critical to withstand NLRC or court scrutiny.
- Consistency with company policy, CBA, and data-privacy safeguards ensures both legal compliance and fair treatment of employees.
Tip: Review your template annually against the latest DOLE issuances and Supreme Court rulings to keep it bullet-proof.