Notice to explain: the two-notice rule for dismissal

What the rule requires

For dismissal based on a just cause, such as serious misconduct, willful disobedience or gross neglect, the employer must follow two steps of notice, and a chance to be heard in between.

1. The first notice (notice to explain)

A written notice that:

• States the specific act or omission charged, with dates and enough facts for the employee to answer
• Identifies the company rule or ground it is charged under
• Tells the employee to submit a written explanation within a stated period

The employee must be given at least five calendar days from receiving the notice to prepare an explanation and consult a representative if they wish.

2. A chance to be heard

The employee must be able to explain their side. A conference or hearing is held when the employee asks for one, when facts are disputed, or when company policy requires it. Keep a record of what was said.

3. The second notice (notice of decision)

A written notice that the employer has considered all the circumstances and decided to dismiss, stating the grounds for that decision. Dismissal takes effect on or after the employee receives it.

Why the steps matter

A dismissal for a valid cause that skips the procedure is not made illegal by it, but the employer can be ordered to pay nominal damages for the lapse. A dismissal without a valid cause is illegal whatever the procedure. Both parts matter: a real cause and a proper process.

Authorized causes are different

Redundancy, retrenchment, closure and similar causes do not use this procedure. They need a written notice to the employee and to the DOLE regional office at least 30 days before the effective date, plus separation pay.

Practical steps for HR

• Write the facts, not conclusions. Attach evidence.
• Count the five calendar days from the day the employee receives the notice. Record the date of receipt and have it acknowledged.
• Keep the explanation, the conference notes and both notices together.
• Keep copies in the employee's file. In OneHRIS, upload them to the employee record under Files.
• The Disciplinary tab on the employee record keeps suspension and absence-without-leave records with their dates and paid days.
• If the employee is separating, see Offboarding and clearance for a departing employee and When final pay must be released.

This page is general information, not legal advice. For a specific case, check with your counsel or DOLE.