Notice to Explain vs. Investigation Report: Does the Company Need to have Both?
NTE is part of the procedural due process mandated by law. Not to make the valid termination illegal but to ensure that the right to due process is respected. Failure to issue the NTE violates this process and renders the employer liable for indemnity in the form of nominal damages.
In some establishments, especially big one, there is a practice of issuing an Investigation Report or IR. Practitioners usually ask if the IR is the same as the NTE.
An IR is also written focusing on incident which is the subject of the NTE. So where does the difference lie?
When disciplinary incident occurs there is a need to identify the employee involved, the witnesses, the act committed, its nature, and possibly evidence. The acquisition of these basic facts is crucial in determining who to charge, what to charge, and what procedure to follow.
This preliminary data gathering is best supplied by the information required in the IR form. So the IR is like an information sheet that contains the initial data needed to decide on how to proceed with the incident.
The IR is not inconsistent with the NTE. After determining who to charge, why, and on what grounds, the HR practitioner can issue the NTE on this score. So the NTE is the next logical step after having the IR.
Should every company use the IR? Not necessarily. An experienced HR practitioner can easily formulate
the contents of the NTE by just conducting interview of witnesses, obtaining statements, looking at the CCTV footage, reading the guard’s logbook, and all other sources of initial information.
Hence, the IR is just a formalized investigation tool that can be done mentally. Yet, there are companies that want to have a record on how this initial finding was arrived at. This is best served by the written IR.
The IR and the NTE can greatly complement each other. They make the documentation of the case more organized and polished. Finally, historical development of the case can easily be reviewed if this level of documentation is practiced.