05 Jun How to serve a Notice to Explain properly (Part 1)
Ever heard of the saying, don’t trip at the finish line? This could happen in disciplinary procedures.
This blind spot usually occurs in the issuance of the Notice to Explain. You spend so much time drafting the best Notice to Explain. It has all the necessary components and it has an awesome narration. But as a manager, your job with respect to the notice doesn’t stop there.
The law requires that you serve it properly. More importantly, you should be able to prove that you served it with the proper documentation.
What does proper service mean? There are 2 typical ways this happens in practice.
Method 1: The face-to-face way
First, you print out 2 copies of the Notice to Explain. The primary copy will be your record, the second one is for the employee.
Then, ask a workmate to tag along as a witness. Don’t worry, this significance of this will become clearer as we go along.
Now, you bring both copies to where the employee’s work space is located. Or, you can summon them to the HR Department. Whichever option works, because the venue doesn’t really matter. The most important part is the one that comes next.
Once the employee is there, you tell him that:
- You have a Notice to Explain for them to receive.
- They have 5 working days to respond to the said Notice via a written reply.
- Last, if the Notice includes a possible Termination penalty, they should be invited to conference.
At this juncture, 2 scenarios can happen.
1. They voluntarily receive the notice.
If this is the case, then thank your lucky stars. Hand them your primary copy and have them sign the bottom portion where it says they received the notice. Don’t forget to add the date and time. Sign the witness portion as well in front of them with the date and time.
As an added precaution, ask your companion or anyone who witnessed the service to sign along with you as a witness. This isn’t required, but it is a good practice to have multiple witnesses as resources in adversarial proceedings.
After that, you’re done. However, scenario 2 is more interesting…
2. They refuse to sign the Notice.
Yes, this can happen. And when it does, don’t panic. Here’s what I advise my clients to do: ask the employee why they don’t want to sign the receiving copy:
- If they say that they disagree with the contents, then that’s an easy objection to overcome. Explain that signing just means they received the copy, but it does not mean they agree with anything in the letter.
- If they say that they want a lawyer or advisor to look at the notice, then explain the same thing to them. Signing does not mean they agree with anything or they are bound to anything stated there. It just means they received a copy of the letter.
I repeat: explain that signing just means they are being given a copy. It does not mean they agree with anything stated there.
In fact, that’s where the written explanation comes in. They can disagree there as much as they want. But in the meantime, they should acknowledge that they were served with a copy of the paper.
Documenting their refusal to sign
Some of you may ask, “But Attorney, I said everything you wrote down above. They still wouldn’t sign. What do I do?” Well, we tried. This time, we have to activate the next step. In this phase, you write on the blank where they were supposed to sign the following line: “Refused to receive.”
Sign it, and add the date and time.
Afterwards, it then becomes a requirement that you have another person sign as a witness. Get 2 people if you can. The more witnesses to your attempt to give them a copy, the better for you.
After writing this, you leave a copy of the notice in their workplace.
Your job is done at this point.
Next up, I want to discuss a few questions students have posed after hearing this material.
Q: “Attorney, he tore the notice after I left it! What do I do?”
That’s no longer our concern. The law requires that management serve a copy of the notice to the employee. It is the employee’s right to do with it as he pleases. He can show it to a lawyer for advise, to consult another person, or as in this case, to tear it apart.
Q: “But Attorney, if he tears it apart or he doesn’t even read it, how can he answer the Notice properly?”
Again, as I said, after you serve (or attempt to serve) the notice, the ball is in his court. If he fails or refuses to answer the allegations in the notice, that’s his call to make. It is no longer up to you.