Standards to Observe in Alleging Offenses in the Notice to Explain

Standards to Observe in Alleging Offenses in the Notice to Explain

Issuance of the Notice to Explain (NTE) is one of the steps required in employee dismissal. At least, insofar as avoiding payment of indemnity is concerned for violation of procedural due process.

Not observing the proper NTE may also impress upon the tribunal the haphazard nature of the employer in issuing such legal requirement. The last thing that an employer, as respondent in a case, wants is to have a wrong impression in the eyes of the labor tribunal.

So, should the employer just state the grounds mentioned in Article 297 of the Labor Code, as amended? Would that be sufficient to comply with the mandate of the law on the issuance of NTE?

Article 297 may not be enough. The employer cannot just allege that the employee is being charged for serious misconduct, willful disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, etc. There must be particularity of the infractions in the NTE.

The facts surrounding the incidents leading to violation should be clearly set out. In the case of King of Kings Transport, Inc. vs. Mamac (G.R. No. 166208, June 29, 2007), the Supreme Court (SC) pronounced that the NTE, or 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.

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Thus, in a case where the employer itself admits that it had failed to provide respondent with a “charge sheet” but that it had substantially complied with the rules, claiming that “respondent would not have issued a written explanation had he not been informed of the charges against him”, the SC held it was not convinced.

First, the employee in King of Kings was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an employee does not comply with the first notice requirement.

Citing Pepsi Cola Bottling Co. v. NLRC, the SC held that consultations or conferences are not a substitute for the actual observance of notice and hearing. Also, in Loadstar Shipping Co., Inc. vs. Mesano, the sanctioning the employer for disregarding the due process requirements, held that the employee’s written explanation did not excuse the fact that there was a complete absence of the first notice.

Second, even assuming that the company was able to furnish an Irregularity Report notifying him of his offense, such would not comply with the requirements of the law. The irregularity reports for employee’s other offenses contained merely a general description of the charges against him. The reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment under Art. 282 [now Art. 297] of the Labor Code. Thus, the “standard” charge sheet is not sufficient notice to the employee.

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Read more on procedural due process discussion by Atty. Elvin:

Read more on procedural due process by Atty. Villanueva:

Twin Requirements of Notice and Hearing

Procedural Due Process for Other Types of Employment

Notice to Explain: Contents and Requirements

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