NOTICE TO EXPLAIN: HOW TO EFFECTIVELY SERVE IT (WITH SAMPLE TRANSCRIPT IN ENGLISH AND FILIPINO)

An employee who is suspected of having committed an offense may be subjected to disciplinary process. A corresponding penalty may be imposed if he is found guilty of the offense which may even involve dismissal from service.

Under Article 292 [formerly 277] of the Labor Code, an employee to be dismissed should be issued two notices: the notice to explain and the notice of dismissal. There is another requirement which is the holding of hearing/conference if the employee requests for it.

In the case of King of Kings Transport, Inc., vs. Mamac, (G.R. No. 166208, (29

June 2007), as discussed in the book Guide to Valid Dismissal of Employees, it was held that:

I. For termination of employment based on just causes as defined in Article 282 of the Code, the requirement of two written notices served on the employee shall

observe the following:

(A) The first written notice should contain:

(1) The specific causes or grounds for termination;

(2) Detailed narration of the facts and circumstances that will serve as basis for the charge against the employee. A general description of the charge will not suffice;

(3) The company rule, if any, that is violated and/or the ground under Art. 282 that is being charged against the employee; and

(4) A directive that the employee is given opportunity to submit a written explanation within a reasonable period.

“Reasonable period” should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employee an opportunity to study the accusation, consult a union official or lawyer, gather data and evidence, and decide on the defenses against the complaint.

(B) After serving the first notice, the employer should afford the employee ample opportunity to be heard and to defend himself/herself with the assistance of his/her representative if he/she so desires, as provided in Article 277(b) of the Labor Code, as amended.

“Ample opportunity to be heard” means any meaningful opportunity (verbal or written) given to the employee to answer the charges against him/her and submit evidence in support of his/her defense, whether in a hearing, conference or some other fair, just and reasonable way. A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it.

(C) After determining that termination of employment is justified, the employer contractor shall serve the employee a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) the grounds have been established to justify the severance of their employment. The foregoing notices shall be served on the employee’s last known address.

In those stated requirements, the employer or his representative has to serve the notices. What is the best way of doing it?

The primary mode is by personal service. This means that the employer should approach the employee carrying the notice (at least 2 copies) and give one copy to him and ask him to indicate his receipt in the employer’s copy.

Chances are, the employee may react harshly against such service. For instance, he may not receive it. In certain cases we have seen employees crumpling the notice and throwing it in the trash bin after receiving it and refusing to sign in the receiving copy.

In serving the notice, it is better that the employee should be summoned to the office to make it formal, accord confidentiality, and give respect. Basically, prior to this service the employee might have already been informed of the service of notice.

Here is a sample transcript in serving this notice in English:

Employer:      Good morning Mr. X. Thank you for accepting my invitation to be here.

Employee:     Good morning and you’re welcome sir.

Employer:      As mentioned, I will be giving you a notice to explain. I have here the NTE for the charge of falsification of commercial documents/tampering vendor’s receipt. I have two (2) copies: one for you and one as my receiving copy.

Scenario 1: The employee receives it

Employee:     No problem sir, I will receive my copy and sign in the receiving copy.

Employer:      Thank you! Please be reminded to submit your written explanation within five (5) calendar days from you receipt today.

Employee:     Noted sir. Thanks!

Scenario 2:   The employee refuses to receive

Employee:     I did not violate any company rule! I will not receive that!

Employer:      I am not saying you did. That is the reason why we are conducting an investigation to find out and serving you the notice to give you a chance to respond.

Employee:     That will still be the same thing. So I am sorry, I cannot receive the document. I will now call my lawyer.

Employer:      If that is the case, I am handing you your copy of the notice which you refused to receive and record in the company’s copy your refusal to do so.

Employee:     Do whatever you want but I will not receive it without instructions from my lawyer.

Employer:      It is up to you but your copy is in front of you and we will record this accordingly.

Now, as best approach, the employer should send another copy by registered mail to the last known address of the employee which will be in addition to the record of refusal to receive remarked in the receiving copy.

Get a copy of more disciplinary notices and forms from the book Human Resource Forms, Notices & Contracts Volume 2

Here is a sample transcript in serving this notice in Filipino/Tagalog:

Employer:      Magandang umaga Mr. X. Salamat at tinanggap mo ang invitation namin dito sa opisina.

Employee:     Magandang umaga sir at walang anuman.

Employer:      Gaya nang nabanggit sa ‘yo, ibibigay namin ang notice to explain o NTE. Nasa akin ngayon ang kopya ng NTE tungkol sa falsification ng mga dokumento sa kompanya o ang pag-tamper ng vendor’s receipt. Meron akong dalawang kopya rito: Isa para sa iyo at isa ay receiving copy.

Scenario 1: The employee receives it

Employee:     Walang problema sir, akin na ang kopya ko at pipirma ako sa receiving copy.

Employer:      Salamat! Paalala lang, kailangan mong i-submit ang nakasulat na paliwanag sa loob ng limang (5) araw mula nang matanggap mo ang sulat. Calendar days tayo.

Employee:     Naiintindihan ko sir. Salamat.

Scenario 2:   The employee refuses to receive

Employee:     Ayokong tanggapin yan dahil wala naman akong nilabag na patakaran!

Employer:      Hindi ko sinasabing meron kang nilabag. Kaya nga nag-iimbestiga ang kompanya ay upang malaman ang buong pangyayari at mabigyan ka ng pagkakataon na maipalawanag ang iyong panig.

Employee:     Parehas din kasi yan sir. Para na rin sinabing may nilabag ako dahil bakit ako iimbesitagahan kung sa tingin ng kompanya wala akong ginawang violation. Kaya pasensya na hindi ko tatanggapin yan. Tatawagan ko ang aking abugado.

Employer:      Kung ganun, ito ang kopya mo ilalapag ko sa harap mo. Nasa iyo na kung tatanggapin mo o hindi. Pero ilalagay namin sa receiving copy ang pangyayari na hindi mo ito tinanggap.

Employee:     Bahala kayo sir kung ano gagawin n’yo. Hindi ko matatanggap yan nang walang advice ng lawyer ko. Pasensya na.

Employer:      Walang problema. Ayan ang kopya mo, at ire-rekord namin sa papel ng kompanya ang refusal to receive. Salamat ulit.

Employee:     Salamat din sir. Pasensya na ulit.

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