Remedy when Employee Refused to Receive the Notice to Explain (NTE)
The Notice to Explain or NTE is one of the documents required or needed to serve to an employee who is under investigation for violation of company rules.
It is served whether or not the violation is punishable with light penalties or even dismissal. Light penalties refer to warning or suspension which is less grave than dismissal.
The service of NTE is part of the procedural due process requirements.
As opposed to substantive, procedural due process refers to the procedure involved in the dismissal of an employee. Notices and hearing or conference belong to this aspect. Procedural due process requires further that an employee can only be dismissed after he has been given an opportunity to be heard. (See page 53, Guide to Valid Dismissal of Employees, 2nd Edition citing See Maneja vs. NLRC and Manila Midtown Hotel, G.R. 124013, June 5, 1998.)
Procedural due process requires that the employee be given a notice of the charge against him, an ample opportunity to be heard, and a notice of termination. (See page 53, Guide to Valid Dismissal of Employees, 2nd Edition citing Sang-an vs. Equator Knights Detective and Security Agency, Inc., G.R. No. 173189, February 13, 2013.)
The rationale behind every requirement was detailed by the Court in another case as follows: (See page 54, Guide to Valid Dismissal of Employees, 2nd Edition citing King of Kings Transport, Inc. vs. Mamac, 553 Phil. 108 (2007); See also Unilever Philippines, Inc. vs. Rivera, G.R. No. 201701, June 03, 2013.)
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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. “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. This 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. Moreover, 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;- After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (a) explain and clarify their defenses to the charge against them; (b) present evidence in support of their defenses; and (c) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement; and
- After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (a) all circumstances involving the charge against the employees have been considered; and (b) grounds have been established to justify the severance of their employment.
The NTE should be served primarily via personal service. In certain cases, the employee may refuse to receive the notice. In such case what should the company do?
The following remedy may be resorted to by the company:
Prior to Service and Refusal
- Prepare at least two (2) originally signed NTE. Make two (2) photocopies.
- Meet with the employee and handover one original copy and informing him that you are giving him his copy of the NTE and you need him to indicate his receipt thereof by signing in your receiving copy (the other original copy)
- If the employee refuses to receive it then proceed to the next step
After the Refusal
- Write in your receiving copy “Refused to Receive” then write our full name and sign above it.
- Indicate or write also the date and time of service (beside or under your written name and signature)
- Ask two witnesses to attest to the service of the notice. Ask them to write their name below where your name is located and sign above their respective names.
- Leave a photocopy on his desk (you do not want an original copy to be lying around in case he does not want to keep it).
- Send another photocopy via registered mail to his last known address. You can see this address in his 201 file.
- Specifically inform the post office that you are sending by registered mail. They will give you a receipt called “registry receipt” (RR). Photocopy the RR.
- Keep the original copy of the RR by stapling it on your receiving copy and keep the photocopy on file (in case you need to present it as evidence just show photocopy).
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