Notices to Explain Should Contain Specific AllegationsAtty Elvin
Notices to Explain required in employee dismissal should contain specific allegations of the offense being charged, among other requirements of the law.
The post below is based on the book Guide to Valid Dismissal of Employees Second Edition
In the case of King of Kings Transport, Inc. vs. Mamac, the Court 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. 282 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):
1. Notice should be served at employee’s last known address;
2. Notice posted in bulletin board is not sufficient;
3. Notice in a newspaper is not sufficient. The newspaper notice was intended to inform the public that the employee was already separated;
4. Notice of preventive suspension and interview cannot be considered adequate notice;
5. Notice to explain must correctly and fully inform the employee of the charges against him.