Wrong disciplinary actions conducted, deliberately or not, against employee’s violations is one of the reasons causing numerous employment disputes. Once such dispute incurs, it leads employers into serial issues to be dealt with. Though, the lawful procedure to settle employee’s mistakes is quite simply applicable, which may prevent employers from legal problems.
1| Violating legislative basic principles and constraints
It is compulsory to bear in mind that any disciplinary actions must be taken on the basis of following principles[1]:
(i) Any employee’s misconduct shall be evidently proved by his employer;
(ii) The participation of the representative organization of the grassroots-level employees’ collective is required;
(iii) The violating employee shall appear in person at the meeting for handling his misconduct, and he is rightful to be defended by himself or by any lawyers or other people. For under-18-year-old employees, the participation of his father, mother or legal representative;
(iv) A written record of the employee’s violation settlement shall be made;
(v) One misconduct behavior shall be applied with one and only one form of discipline. In case there is simultaneously more than one misconduct behavior, the highest form of discipline shall be applied amongst others.
(vi) Employees shall not be punished they are in the period of (“Exemption Period”):
- Sick leave or convalescence leave; or absence under a permission of the employer;
- Temporary custody or detention;
- Pending the conclusion of investigation bodies for the violations prescribed under Article 126.1 of the Labor Code 2012; or
- For female employees, pregnant or maternity leave or rearing a child under 12 months of age.
(vii) No disciplinary action shall be imposed on any employees who are suffering a mental disorder or any kinds of disease which disables their capacity to control acts.
Furthermore, following punishments, deliberately imposed or not, are strictly prohibited under the labor code[2]:
(i) Adversely impacting the body or dignity of the employees;
(ii) A fine or wage reduction instead of a disciplinary measure;
(iii) Imposing discipline against violations which are not prescribed under company’s working regulation.
2| Forms of discipline
Imposing wrong the wrong form of discipline is also a mistake that some employers often make. Accordingly, only forms prescribed under the labor code are allowed to be imposed, other than that are illegal, particularly:
(i) Reprimand;
(ii) Prolongation of the wage rise period for no more than 6 months, or removal from office; or
(iii) Dismissal.
3| Time limits to impose discipline[3]
Regarding time limit, employers must be aware of that discipline is able to be imposed since the commencement of the employee’s violations, not the time such acts are exposed.
Accordingly, any violations directly related to finance, assets, disclosure of technological or business secrets shall be handled within 12 months, otherwise shall only be within 06 months. If the violating employees are in an Exemption Period, the time for the discipline impose can be extended to 60 days since the end of the Exemption Period.
Equally important, disciplinary decision shall be issued within the time limits mentioned in this part.
4| Procedure to impose the discipline: Do not forget your written notice
The procedure is simple, but some employers still get themselves in trouble because of forgetting to send a written notice to the violating employee, representative organization of employee collective and parents or legal representative of the under-18-year-old employee. Such forgetting may be an evidence against the employer if he wants to dismiss the violating employee.
5| Illegal dismissal: employer’s nightmare
Dismissal is one of the highest forms of discipline, however, it can be implemented only in few cases[4]. In fact, there are many employers have to compensate for the employees who is wrongly dismissed. Therefore, employers need to remember following circumstances that the law allows to impose the dismissal:
(i) An employee commits an act of theft, embezzlement, gambling, intentional infliction of injury, use of drugs inside the workplace, disclosure of technological or business secrets or infringement of intellectual property rights of the employer, or acts which cause serious damage or threaten to cause serious damage to the assets or interests of the employer;
(ii) An employee who has been subject to the disciplinary measure of prolonging the wage rise period commits recidivism when the disciplinary record has not yet been written off or an employee who has been subject to the disciplinary measure of removal from office commits recidivism;
Recidivism means that an employee re-commits the same violation for which he/she has been disciplined while his/her disciplinary record has not yet been written off under Article 127 of this Code.
(iii) An employee has been absent from work without permission for a total of 5 working days within 1 month or 20 days within 1 year without plausible reasons.
If you have any questions or require any additional information, please contact Apolat Legal – An International Law Firm in Viet Nam.
This article is for general information only and is not a substitute for legal advice.
[1] Article 123 Code of Labor 2012
[2] Article 128, Code of Labor 2012
[3] Article 124, Code of Labor 2012
[4] Article 126, Code of Labor 2012
