How to Respond to a Notice to Explain (NTE)Atty Elvin
A Notice to Explain (NTE) is a written charge of the employer requiring the employee to explain his side on the allegation of violation of company policies, rules, and procedures, etc.
In other companies, NTE is also called Show-Cause Memorandum (SCM), Show-Cause Order (SCO) or any other term. There is no hard-and-fast rule as to the name of this memo or letter to employee. The bottom line is that it is a charge sheet demanding explanation.
What is the reason why the company issues NTE to employees? Employers are required to observe due process in employee termination. Under the Labor Code, it is mandated that the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. (See Art. 292 of the re-numbered Labor Code)
- The specific causes or grounds for termination as provided for under Article 297 of the Labor code, as amended, and company policies, if any;
- Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice; and
- A directive that the employee is given opportunity to submit a written explanation within a reasonable period
A reasonable period is construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult or be represented by a lawyer or union officer, gather data and evidence, and decide on the defenses against the complaint. (See page 32-33, Guide to Valid Dismissal of Employees 2nd Edition by Atty. Elvin B. Villanueva citing King of Kings Transport, Inc., Claire dela Fuente, and Melissa Lim vs. Santiago O. Mamac, G.R. No. 166208, 29 June 2007)
Hence, an employee who needs to respond to the NTE should draft the Reply addressing the specified causes or grounds for termination or disciplinary action. Rebut, explain, or provide counter-evidence to the facts and circumstances alleged in the NTE.
For instance, the ground specified may be willful disobedience, serious misconduct, willful breach of trust, fraud, gross and habitual neglect of duties, commission of a crime or offense against the employer or his representative, and analogous cause to these offenses.
Basically, the reply to the NTE should explain why the employee is not liable for willful disobedience, serious misconduct, willful breach of trust, fraud, gross and habitual neglect of duties, commission of a crime or offense against the employer or his representative, and analogous cause to these offenses.
Likewise, the employee should explain, rebut, or assail head-on the factual allegations of the NTE. Ideally, this should be done point-by-point.
The reply should be in writing. This provides best evidence that the reply was made.
Sample Reply Letter:
To: HR DEPARTMENT
From: Lala Banaco-Anocalamo
Date: July ____, 20____
Subject: REPLY TO THE NOTICE TO EXPLAIN (NTE)
This has reference to the NTE that you served on me dated ____________, 20____ directing me to explain the alleged serious misconduct.
The NTE provides that on ___________ I had a fistfight with Mr. Gus T. Upacan within the office premises.
While it is true that there was a fight between us, I was just defending myself because he hit me first while I was seated during the break. This is clearly shown by the CCTV footage which the security office produced.
Hence, I am not liable for serious misconduct since it is within my right to defend myself against any attack on my person. Mr. Upacan punched me in the face with evident surprise and treachery which I was not able to avoid it. Actually, he was supposed to hit me again but I just parried the punch and hit back.
With all due respect, there is no serious misconduct on my part. Hope this merits consideration of the management.
Very truly yours,