Imposing Discipline Against The Employee Who Is Absent From Work Without Permission21/11/2019 admin
Managing and using employees in compliance with the law is a burdensome issue of enterprises operating in Vietnam. In many cases, it is difficult for such enterprises to determine a measure to handle a specific circumstance to protect their interests against the fact that the Labor Code is mainly made for employee’s rights.
Enterprises operating in manufacturing, processing or other fields using manual labor are usually confronted with the employee’s absence from work without permission and notification, or with a situation in which the employees do not come to work for any day despite a labor contract has been already signed. Such problems cause confusion and difficulty for the enterprises in determining a resolution in compliance with the law to avoid being sued by the employees.
In case an employee is absent from work without permission, his enterprise can choose one of the following approaches to handle:
APPROACH 1: DISMISSAL
Pursuant to Article 126 of the Labor Code 2012, the enterprise is permitted to impose dismissal if the employee is absent from work for a total of 05 working days in 01 month (30 days) from the first day of being absent from the work without permission and plausible reasons. However, the following issues should be aware of:
- An Internal Working Regulation is required as a basis of imposing discipline against employees, if the enterprise has from over 10 employees then it shall register an Internal Working Regulation at the competent authority before the implementation of it.
- The procedure of imposing discipline prescribed under Article 30 of the Labor Code shall be fully implemented, including:
(i) By a writing and at least 05 working days before the meeting for imposing discipline, making a notification about such meeting to the Executive Committee of the Grassroots-level Trade Union or that of the immediate higher-level trade union if it is a non-unionized enterprise and to the employee imposed discipline (parents or the legal representative of the employee aging under 18);
(ii) After 03 times of such notification, if the employee or one of the participants mentioned above do not appear at the meeting, then the enterprise is permitted to implement the meeting, except that the employee is in the period of which no disciplinary acts shall be imposed as prescribed under Clause 4 Article 123 of the Labor Code;
(iii) A memorandum of the meeting shall be made and approved by all the participants before the end of the meeting. Such memorandum shall be signed by all participants and the memorandum writer. In case that there is a participant rejects to sign in the memorandum, then a reason for the rejection shall be written instead;
(iv) The decision on imposing discipline shall be issued within the time limit for settling employee’s violation or the extension of such term as stipulated under Article 123 of the Labor Code. This decision shall be sent to the participants of the meeting.
However, this approach is quite cumbersome and complex, and, likely, the employee will not appear in any meetings of imposing discipline due to his intention to stop working at the enterprise.
APPROACH 2. CONSIDERING THE LONG-TERM ABSENCE OF THE EMPLOYEE AS HIS UNILATERAL TERMINATION OF LABOR CONTRACT
Pursuant to Article 37 of the Labor Code, the employee is allowed to unilaterally terminate the labor contract in the circumstances prescribed under Article 37 such as not being assigned to tasks, arranged workplace or ensured to work in conditions in accordance with the labor agreement; not being fully or punctually paid as agreed in the labor contract; …However, in case that an employee is absent from work without permission and any plausible reasons, his enterprise may, on the basis of Article 41 of the Labor Code, determine such employee has unilaterally terminated the labor contract illegally (specifically under Article 37 of the Labor Code). The unilateral termination of the labor contract, in this case, is determined upon the absence from work without any notification or approval from the competent manager of the enterprise.Accordingly, the enterprise shall require the employee to attend a meeting for considering the labor relationship. After 03 times of requiring by writing, if the employee does not appear at the meeting, the enterprise may determine that the employee has unilaterally terminated the labor contract illegally. As a consequence, the employee who unilaterally terminates the labor contract shall:
- Not be paid allowance for quitting the job and shall compensate the enterprise an amount equivalent to half of his wage under the labor contract;
- Compensate the enterprise, in case of violating the time limit for making a notification on unilateral termination of the labor contract, an amount equivalent to the wage that such employee could be paid in the period of absence without notification in advance;
- Return the expense for training to the enterprise as prescribed under Article 62 of the Labor Code.
The enterprise shall carefully apply one of the two above-mentioned approaches to reduce the legal risk of being sued by the employee for imposing dismissal or unilaterally terminating the labor contract illegally. As a consequence, the enterprise may incur the following damages:
- Receiving the employee back to work under the previous labor contract and paying wage, social insurance, health insurance in the non-working period of the employee and wages of 02 months under the labor contract;
- In case that the employee does not want to continue to work, in addition to the compensation as mentioned in paragraph 1 above, the enterprise shall pay allowance for quitting the job as prescribed under Article 48 of the Labor Code;
- In case that the enterprise does not want to receive the employee back and this person agrees with such, in addition to the compensation as mentioned in paragraph 1 above and as prescribed under Article 48 of the Labor Code, the parties can negotiate an additional compensation equivalent to the wage of at least 02 months under the labor contract before the termination;
- In case that the position, tasks which have been agreed under the labor contract are unavailable, but the employee remains the wish to work, then in addition to the compensation as prescribed under paragraph 1 above, the parties can negotiate to amend and complement to the labor contract.