Notices Required in Terminating EmployeeAtty Elvin
The first notice prior to dismissal based on just cause is known as the notice to explain or NTE as HR practitioners put it. Some call it show-cause memo or SCM. Others refer to it as show-cause order.
Whatever terminology may be used to call it, the essence is that the notice should apprise the employee charged of the offense and the fact that such offense may be ground for his dismissal. That way, he is given the opportunity to put up an intelligent defense against a possible loss of employment.
The first notice is not intended to inform the employee of his actual dismissal. That point is the subject of the second notice. Take note of the two-notice rule.
The law is not satisfied if only the second notice is served. As held by the Supreme Court there is no compliance with the due process requirement of the law if only the second notice is served on the employee informing him that he was thereby terminated from work but there was no earlier notice apprising him of the particular acts or omissions for which his dismissal was sought.
No particular form is prescribed for the two notices. The notices need not be couched in any prescribed form. Provided they sufficiently apprise the employees of the specific acts they are being made to account for and give them ample opportunity to respond, the notices satisfy the due process requirement. The first notice, in fact, may be loosely considered as the proper charge. Verily, notice to the employee should merely embody the particular acts or omissions constituting the grounds for which the dismissal is sought. The second notice is the notice informing the employee of the employer’s decision to dismiss him.
The notice requirements must be strictly observed by the company to avoid any legal complications arising from subsequent decision to dismiss. This is a sound perspective even if the case of dismissal falls within the exception from notice requirements. If an employer has to make an error, it is better to err on the side of caution that is, overdoing the procedural due process aspect of dismissal if still permissible. This prevents the unnecessary payment of indemnity.
As a matter of policy, it is better to overdo the due process requirements than to argue fiercely later on that circumstances warranted the exception from notice requirements.