How to serve a Notice to Explain properly (Part 2)

How to serve a Notice to Explain properly (Part 2)

This is the second post in this series.

Method 1 assumes that the employee is within the premises or you know where he is. But what about scenarios where the employee is nowhere to be found? That’s where this method comes in.

Method 2: The Remote Method of Service

You refer back to the employee’s records or 201 file. There, you copy the last known address they provided. You put the employee’s copy of the Notice there, and send it to their address.

How should you send it? I usually utilize a private courier or registered mail with the post office. Both are legally compliant. What matters is that you get the receipt that you sent it.

What do you do with the receipt? You staple it with the primary copy you have and file it in his 201 file for reference.

Pro-tip: if I know that the case will probably be contested in the labor courts, I send copies both thru registered mail and private courier. This multiplies the people I can ask for certifications that the letter was sent. It also affords the employee multiple opportunities to reply and respond. Remember the cardinal rule of evidence: the more you have, the better your chances of winning becomes.

Q: “Attorney, I don’t think he still lives in the address he gave. I’m not sure he will be able to receive it there. Should I try to find their current address?”

That’s fine, but unnecessary. Under the law, as long as you send a notice to the last address they provided you, that is already compliant. Your job is finished at that point. No need to investigate.

Why? The law places the responsibility to update records on the shoulders of the employees. If their circumstances change, they should update their records. Otherwise, they waive their rights to receive notices in their updated addresses.

In fact, if you conduct an investigation on your own and find a different address, I would still advise that you send a copy to their old address. That keeps you safe in case they put up the insane defense that they were not served a copy of the notice at the address they provided with the company.

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