Notice to Explain (NTE): Contents and RequirementsAtty Elvin
In the case of King of Kings Transport, Inc. vs. Mamac, the Supreme Court (SC) said that the first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period.
In order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 297 is being charged against the employees.
The notice to the employee should embody the specific charges for which he is being asked to explain. An employee cannot be dismissed if the charges mentioned in the notice for which he was required to explain and for which he was heard, were different from the ones cited for his termination.
The dismissal of an employee must be based on the same grounds cited in the first notice given to him to explain. If an employee is dismissed based on grounds different from those cited in said notice, he is deemed to have been deprived of procedural due process. For in this situation, he could not be expected to adequately defend himself as he was not fully or correctly informed of the charges against him which management intended to prove.
It is less than fair for management to charge an employee with one offense and to dismiss him for having committed another offense with which he had not been charged and against which he was unable to adequately defend himself.
As held by the Supreme Court, the following dos and don’ts must be observed in the first notice (notice to explain or NTE):
- Notice should be served at employee’s last known address;
- Notice posted in bulletin board is not sufficient;
- Notice in a newspaper is not sufficient. The newspaper notice was intended to inform the public that the employee was already separated;
- Notice of preventive suspension and interview cannot be considered adequate notice; and
- Notice to explain must correctly and fully inform the employee of the charges against him
The law mandates that every opportunity and assistance must be accorded to the employee by the management to enable him to prepare adequately for his defense.
The decision to dismiss must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge and ample opportunity to be heard and defend himself with the assistance of a representative.
The reasonable period is not specified in the Labor Code. In one case, the Supreme Court considered the two-day period given to the employee to explain and answer the charges against her as most unreasonable, considering that she was charged with several offenses and infractions (35 absences, 23 half-days and 108 tardiness), some of which were allegedly committed almost a year before, not to mention the fact that the charges leveled against her lacked particularity.
Apart from chronic absenteeism and habitual tardiness, petitioner was also made to answer for loitering and wasting company time, getting salary of an absent employee without acknowledging or signing for it and disobedience and insubordination.
Read more on procedural due process by Atty. Villanueva:
The Supreme Court interpreted the “reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense.
The Court further said that “reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.