Basics in writing a Notice to Explain memorandum

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Published — June 14, 2018

The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.

Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.

Related Topic: How to Dismiss an Erring Employee the Right Way

In determining whether an employee’s dismissal (or any other disciplinary sanctions for that matter) had been legal, the inquiry focuses on whether the dismissal violated his right to substantive and procedural due process. An employee’s right not to be dismissed without just or authorized cause as provided by law, is covered by his right to substantive due process. Compliance with procedure provided in the Labor Code, on the other hand, constitutes the right to procedural due process of an employee [See: G.R. No. 200898].

As for substantive due process, Article 297 of the Labor Code enumerates the just causes for termination, which are:

1. Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
2. Gross and habitual neglect by the employee of his duties;
3. Fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative;
4. Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
5. Other causes analogous to the foregoing.

Regarding procedural due process, jurisprudential declarations are rich to the effect that the essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side. A formal or trial type hearing is not at all times and in all instances essential to due process, the requirements of which are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy [See: G.R. No. 157603].

In dismissing employees, what comes into mind is the two-notice rule: Notice to Explain (“NTE”), and Notice of Decision (“ND”). The NTE is issued for the purpose of apprising the employee that an offense is being charged against him, and he is given the opportunity to defend himself. The ND, on the other hand, apprises the employee that a determination has been made on whether or not he is guilty of the offense charged, and the penalty imposed upon him if indeed found guilty.

As for preparing a NTE, it is necessary that it be done right, considering that a defect in the NTE may prove to be the difference between proper separation and illegal dismissal, which in turn could prove costly for employers. With this, here are the matters that should appear in a proper NTE.

How the offense was committed

The NTE must state the facts and circumstances showing how the offense being charged was committed. This is very important because one cannot expect the employee to be able to defend himself if he is not informed of the acts he allegedly committed that constitutes the offense leveled against him. Taking that into consideration, the employee would be effectively deprived of his right to be heard if this is not clearly stated in the NTE, thereby giving the employee the opening he needs to question the validity of any subsequent punishment imposed against him even if he is really guilty thereof.

The grounds for disciplinary action being relied upon

The offense or violation committed, whether under the code of conduct or the Labor Code, has to be stated in the NTE. This is to inform the employee of what particular offense(s) is/are being charged against him. Even though an employee would be dismissed for cause under the Labor Code, it is necessary for him to be apprised that the acts or omissions being attributed to him indeed constitutes an offense that warrants disciplinary action.

Penalty for the offense being charged

It would be fair for the employee to be informed of the consequences of the charges against him, and thus he must be apprised of the penalty imposable upon the offense being charged. This is especially true when the employee would be facing a possible dismissal as a result, because he deserves to know that he stands to lose his job—and his livelihood—in the event he is found guilty.

Opportunity to explain and right to be represented

This is the essence of a NTE: that the employee should be given the opportunity to explain his side. Making such opportunity unequivocal has become among the best practices in employee discipline, and there is no better way to do it than to express clearly in the NTE that the employee is being given a reasonable period of time to explain why he should not be made to suffer the penalty imposable upon the offense being charged against him.

There is no hard and fast rule as to what constitutes reasonable time to explain, though employees are usually being given 24 hours to submit their written explanation. However, in case the employee is being charged of an offense punishable by dismissal, it has been held by jurisprudence that the period for an employee to explain should be at least 5 days [See: G.R. No. 166208].

It is also important to make sure that in the NTE, the employee is informed of his right to be represented by any person he may choose, who may or may not be a lawyer. This will send a message to the employee that the management is proceeding against him fairly, and that he is not being denied of any lawful assistance he that he may deem to need in defending himself.

Getting the employee to know his rights will shut all doors for him to claim that due process was not fully observed by his employer. This will help the management impose its code of discipline without fear of being taken to the labor authorities for allegations of illegal imposition of disciplinary sanctions. Certainly, maintaining discipline within the workplace is imperative, as it is among the keys to a more productive, well behaved, and well performing workforce.

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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding employment disciplinary procedures, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.

All rights reserved.

 

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