Points to note when applying labor discipline penalties due to dismissal
2024/04/16
- Ho Thi Y NhiI
Introduction
Labor discipline through dismissal is the highest level of punishment that employers are legally permitted to apply to workers who violate labor discipline. The application of dismissal sanctions has a significant impact on the rights and obligations of employers and workers in labor relations, so there is a high risk that legal disputes will arise between the two parties. This article explains the points to keep in mind when companies apply dismissal penalties.
1. Grounds for application of labor discipline measures due to dismissal
In order to use a worker’s violation as a basis for dismissal, it is an important prerequisite that the violation is specified in the work rules. According to the regulations, companies with 10 or more workers must issue written work regulations and register them with local labor authorities in order to have legal effect. The 2019 Labor Law stipulates that employees may be subject to dismissal in the following four cases, excluding cases of sick leave, pregnancy leave, arrest, detention, etc.
Case 1: When a worker commits theft, embezzlement, gambling, intentional injury, or drug use in the workplace
Employers can only apply dismissal sanctions if the employee commits these violations within the workplace. A workplace refers to any place where work is performed or where work is shared with an employer in accordance with an agreement between the employer and the employee.
Case 2: A worker leaks the employer’s confidential information (sales/technical information), infringes on intellectual property rights, causes serious damage to the employer’s property or profits, or is likely to cause particularly serious damage If the employee engages in sexual acts or sexual harassment in the workplace as stipulated in the employment regulations.
(i) Leakage of employer’s confidential information and infringement of intellectual property rights
In order to determine and determine violations, employers are required to provide specific definitions of assets, trade secrets, and technical secrets, as well as a list of the company’s intellectual property rights, in their work regulations. Furthermore, information security regulations can also be prescribed with the same contents as these. Note that labor laws and regulations do not specify conditions for claims for property damage resulting from these acts, so employers are not required to prove property damage suffered. In practice, the purpose of determining damages is to determine the compensation owed by the employer to the worker.
(ii) Acts that cause serious damage to the employer’s property or interests, or acts that have the potential to cause particularly serious damage.
Currently, labor-related laws and regulations do not provide general standards for determining the amount of these damages. Therefore, employers need to specifically specify the amount of damages that will be the basis for dismissal in their work regulations. This means that employers will define the amount of damages that constitute either “significant” or “extraordinarily significant” depending on factors such as the nature of their business, their business model and their scale. In this case, the following three conditions must be met.
– The amount of damages is a reasonable amount.
– The amount of damages is consistent with the actual situation, such as the characteristics, business model, and scale of the company’s business.
– Refer to the opinions of the worker representative organization (if any) at the workplace
Case 3: A worker who has received disciplinary action, such as an extension of the pay increase period or dismissal, commits another offense before the disciplinary action is lifted.
According to Article 125, Paragraph 3 of the 2019 Labor Law, recidivism refers to committing the same violation again while the disciplinary action has not yet been resolved. Therefore, employers can only apply dismissal sanctions in cases of repeat offenses. Specifically, in the case of an extension of the salary increase period, it is within six months, and in the case of dismissal, it is within three years.
Case 4: If the worker abandons work for a total of 5 days in 30 days or 20 days in 365 days without justifiable reason.
The following are cases that are considered legitimate reasons under the law.
– Natural disasters, fires
– Illness of the worker himself/herself, illness of a relative (limited to cases diagnosed by a medical institution)
– Other cases stipulated by the work regulations
Therefore, an employer has the right to take the disciplinary action of dismissal against an employee who abandons work for the above number of days, but in that case there must be clear evidence to prove the employee’s violation. This basis may be internal regulations regarding leave and leave application procedures, actual working hours recorded on a time clock, or the company’s attendance management system.
2. Principles for implementing labor discipline measures through dismissal
In addition to a clear basis for determining the violation, a disciplinary decision will only be considered lawful if the disciplinary meeting is conducted in accordance with the legal process. Except for sexual harassment, which must be separately stipulated by the employer, other violations must be handled according to the following procedures:
Step 1: Prove that the worker committed a violation
– If you discover a violation immediately: make a record of the violation and notify the workers’ representative organization (if any) to which the workers belong.
– If a violation is discovered after it has been committed: Collect evidence to prove the worker’s violation.
Step 2: Hold a meeting for labor discipline (within the statute of limitations for labor discipline)
At least five business days prior to the date of the labor disciplinary meeting, the employer shall notify the relevant parties attending the meeting of the content, time, place, names of those subject to the meeting, and violations, etc.
– The parties attending the meeting are the worker, the worker’s representative organization (if any) to which the worker belongs, and if the worker is under 15 years of age, the worker’s legal representative.
– Hold a labor discipline disciplinary meeting at the notified time and place, prepare minutes, and approve the minutes with the signatures of the attendees during the meeting.
Step 3: Issue a decision on labor discipline
A written decision on labor disciplinary action shall be issued by a person with disciplinary authority within the statute of limitations for the following disciplinary action:
– In the case of violations directly related to the employer’s property, profits, trade secrets, or technical secrets: The statute of limitations for labor disciplinary action is 12 months from the date of the violation.
– For other violations: The statute of limitations for labor disciplinary action is 6 months from the date of the violation.
Step 4: Publish the decision on labor discipline
The decision on labor discipline shall be sent to the relevant parties attending the meeting.
Conclusion
Of the four labor disciplinary punishments: reprimand, extension of the salary increase period for no more than six months, dismissal, and dismissal, dismissal is the most severe disciplinary punishment, and because it ultimately results in the termination of the employment relationship, it is often with potential risks. For this reason, the Labor Law limits the types of violations that are subject to labor disciplinary action and stipulates strict procedures in order to protect the rights of workers to the maximum extent possible. Therefore, when applying this form of dismissal disciplinary action, employers should be careful to ensure that there are no legal issues, and are recommended to consult with the competent labor organization as necessary.
Reference
・2019 Labor Law
・Ordinance 145/2020/ND-CP No.
M000111-180
(Created on April 16, 2024)
*This article was translated by Yarakuzen.
