1) What a Notice to Explain is—and why accuracy matters

A Notice to Explain (NTE) is typically the employer’s first written notice in the “twin-notice” (or “two-notice”) requirement for disciplinary termination based on just causes (e.g., serious misconduct, willful disobedience, gross and habitual neglect, fraud, commission of a crime against the employer or its representatives, and analogous causes).

In Philippine labor law, the NTE is not a mere formality. It is the document that:

Informs the employee of the specific acts/omissions complained of; and
Gives the employee a fair chance to answer, gather evidence, and request a conference/hearing.

Because the NTE functions like a “charge sheet,” errors in the alleged violation(s) can undermine the employee’s ability to meaningfully defend themselves. The core question is whether the NTE—despite the error—still satisfied due process and whether the employer proved a valid substantive ground for discipline or dismissal.

2) The governing framework: substantive validity vs procedural due process

Philippine labor termination disputes are usually analyzed in two tracks:

A. Substantive validity (Was there a lawful ground?)

The employer must prove by substantial evidence that a just cause existed (for disciplinary dismissal) or that an authorized cause existed (for business/health-related termination). For NTE issues, the common setting is just cause.

B. Procedural due process (Was the correct procedure followed?)

For just-cause dismissal, due process generally requires:

First written notice (NTE): specifying the acts/omissions and giving the employee time to respond (commonly at least 5 calendar days to submit a written explanation);
Opportunity to be heard: a hearing/conference when requested or when circumstances warrant; and
Second written notice: informing the employee of the employer’s decision and the reasons.

The leading case often cited for the required contents and the meaningful opportunity to respond is King of Kings Transport, Inc. v. Mamac (G.R. No. 166208, June 29, 2007). On the two-notice rule and due process consequences, cases commonly cited include Perez v. Philippine Telegraph and Telephone Company (G.R. No. 152048, April 7, 2009) and Agabon v. NLRC (G.R. No. 158693, Nov. 17, 2004).

Key point: An incorrect NTE can affect either track:

It may signal no just cause (substantive failure), or
It may show defective due process even if just cause existed (procedural failure).

3) What counts as an “incorrect violation” in an NTE?

“Incorrect violations” can mean different things in practice. The legal impact depends on what exactly is wrong and whether the employee was prejudiced.

Common types:

1) Wrong rule/policy provision cited

Example: NTE says “Violation of Code of Conduct Sec. 7 (Fraud)” but the alleged act is actually “Tardiness/Attendance infraction.”

2) Wrong classification of offense or legal label

Example: NTE alleges “Serious Misconduct,” but the facts—if true—look more like “simple negligence” or a performance issue.

3) Incorrect facts (date, place, incident, amount, persons involved)

Example: NTE says the incident happened on January 10, but it happened on January 12; or alleges you were absent on a day you were on approved leave.

4) “Overcharging” or piling on violations

Example: A single incident is charged as multiple grave offenses without clear factual basis.

5) The employer later terminates for a different ground than what the NTE charged

Example: NTE is about “attendance fraud,” but the dismissal notice is based on “loss of trust and confidence” grounded on a different act not described in the NTE.

4) The legal test in practice: Was the employee properly informed and given a real chance to defend?

Philippine labor tribunals and courts often look past technicalities and focus on substance: did the NTE clearly communicate the accusation so the employee could respond meaningfully?

A useful way to frame it:

A. Minor/harmless error → NTE may still be valid (substantial compliance)

If the NTE accurately describes the conduct (who/what/when/where/how), but mis-cites a section number, uses an imperfect label, or has a non-material typo, it may still satisfy due process—especially if:

The employee clearly understood the incident being charged;
The employee actually submitted a detailed answer addressing the allegation; and
The employer did not “switch” to a different incident or theory at the end.

B. Material error that misleads/prejudices the employee → NTE is defective

If the “incorrect violation” changes the nature of the accusation or hides the real basis for discipline, then the employee’s right to due process is compromised. Red flags include:

Vague statements like “you violated company rules” with no particulars;
Wrong incident alleged (different date/transaction/event);
The NTE describes one act but the employer’s evidence and decision rely on another;
The employee requests details/evidence but is not given enough information to answer; or
The employer terminates for a ground that was not raised in the NTE.

C. “Bait-and-switch” (termination based on a different ground) is especially risky

If the employer’s decision notice relies on a ground materially different from the NTE, this often becomes either:

A procedural due process problem (no meaningful chance to answer the true charge), and/or
A substantive problem (the employer fails to prove a properly-charged just cause).

5) If the NTE is defective, does that automatically invalidate the dismissal?

Not always. The outcome depends on whether just cause actually existed and what exactly was defective.

Scenario 1: Just cause exists, but NTE/due process is defective

Under Agabon, dismissal may remain substantively valid (employee actually committed a just cause), but the employer can be ordered to pay nominal damages for violating procedural due process.

This is a common result when:

The misconduct is proven by substantial evidence; but
The NTE lacked required particulars or the employee wasn’t given proper opportunity to respond.

Scenario 2: No just cause is proven (or the charge is materially incorrect)

If the employer cannot prove the charged misconduct (or what is proven is different from what was charged in a way that deprives due process), then dismissal may be declared illegal, with potential remedies such as:

Reinstatement without loss of seniority rights and full backwages; or
Separation pay in lieu of reinstatement (depending on circumstances), plus backwages.

Scenario 3: The employer cures the error before deciding (supplemental/amended NTE)

If the employer discovers the NTE is wrong during the investigation, the safer course is to issue a supplemental/amended NTE that:

Correctly states the facts and the rule(s) allegedly violated,
Attaches or summarizes the evidence relied upon (when feasible),
Gives the employee a fresh reasonable period to respond (commonly at least 5 calendar days), and
Offers a conference/hearing.

When done before the decision, this may cure the due process issue because the employee is ultimately informed and heard on the real charge.

What usually cannot be cured: issuing a correct NTE only after termination and claiming it retroactively fixes the defect.

6) Common “incorrect violation” situations and likely outcomes

A) Wrong section number, but facts are clear and unchanged

Example: NTE says “Sec. 3” but should be “Sec. 4,” and the narrative details clearly identify the incident.
Likely: Substantial compliance; due process usually satisfied if the employee understood and responded.

B) Wrong label (e.g., “serious misconduct”) but the factual narrative is clear

Example: The act described is a one-time minor lapse but labeled as serious misconduct.
Likely: The label alone is not decisive. The key is whether the proven facts amount to a just cause. Over-labeling may backfire if the facts don’t meet the required gravity.

C) Wrong incident/date/transaction (employee answers the “wrong” accusation)

Example: NTE alleges falsification in Transaction A, but evidence and decision are about Transaction B.
Likely: Defective due process and/or illegal dismissal risk. This is material because the employee was not charged properly.

D) Termination notice cites a different ground than the NTE

Example: NTE is about tardiness; decision notice dismisses for loss of trust based on alleged theft not described earlier.
Likely: High risk of procedural due process violation; also potential substantive issues if employer fails to prove a properly-charged basis.

E) “Overcharging” multiple offenses for one act without clear particulars

Example: One heated argument is charged as serious misconduct, insubordination, gross neglect, fraud, and commission of a crime.
Likely: The tribunal will look for substantial evidence per charge. Overcharging may weaken credibility and invites a finding that the employer acted arbitrarily.

7) Practical standards: what an NTE should contain to be “valid”

To minimize challenges based on incorrect or vague violations, an NTE should ideally include:

Specific factual allegations
- The act/omission, date/time, place, persons involved, and circumstances.
Evidence basis (at least a summary)
- Not always a full disclosure requirement in private employment, but sufficient detail to allow a meaningful response.
- Attaching documents (logs, screenshots, statements) is best practice when feasible.
Specific policy/rule violated
- Cite the rule and explain how the facts relate to it.
- If there is uncertainty, list the plausible rules, but still anchor on facts.
Directive to explain and a clear deadline
- Provide a reasonable period (commonly at least 5 calendar days).
Opportunity to request a conference/hearing
- Especially when facts are disputed or credibility issues exist.
Notice of possible penalty
- Not strictly required in all cases, but helpful to show fairness and transparency.

8) Employee-side strategy when you receive an NTE with incorrect violations

If you believe the NTE is inaccurate or mischarges you, your response often matters. Practical steps:

Answer on the facts first
- Deny or admit specific allegations; provide your timeline; attach proof (DTR, emails, approvals, messages).
Raise the defect clearly
- Point out incorrect dates, wrong incident, wrong rule, missing particulars, or lack of evidence disclosed.
Request clarification and evidence
- Ask for the documents/logs relied upon and for a conference to clarify disputed facts.
Object to “new allegations”
- If HR introduces a different incident later, state that it was not in the NTE and request a supplemental notice and time to respond.
Keep records
- Keep copies of the NTE, your answer, proof of submission, and any subsequent notices.

9) Employer-side best practices when the NTE is wrong

If you are HR or management and discover that the NTE cited incorrect violations:

Do not rush to a decision
Issue a corrected/supplemental NTE
- Correct the incident details and/or the alleged rule violation(s).
Reset the response period
- Give a fresh reasonable time to answer.
Hold a conference if facts are disputed
Ensure the decision notice matches the charge
- The final notice should be anchored on allegations the employee was asked to explain.

This reduces exposure to findings of procedural due process violation and nominal damages even when misconduct is real.

10) Key takeaways

An NTE is “valid” when it clearly informs the employee of the specific acts/omissions complained of and gives a real opportunity to respond.
An NTE that cites an incorrect violation is not automatically void—but material inaccuracies that mislead the employee or support a later “switch” in grounds can make the process defective and may contribute to a finding of illegal dismissal if the employer cannot prove a lawful cause.
If just cause is proven but procedure is defective, employers often face nominal damages for due process violations (a frequent outcome under Agabon principles).
The safest cure for an incorrect NTE is a supplemental/amended NTE issued before any decision, with a new response period.

If you want, paste a sample NTE (redact names/company identifiers) and I’ll mark which parts are likely harmless errors vs material defects, and how those defects typically affect a labor-case theory (illegal dismissal, due process damages, or both).