Managing labor discipline when employees commit violations during the training period abroad - Apolat Legal
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Managing labor discipline when employees commit violations during the training period abroad

Many businesses now choose to send employees abroad for training to foster professional skills for employees. For various reasons, the employee might violate the training contract during the training period. In addition to the fact that the employee may be liable under the training contract for reimbursement of training costs or other expenses, the employer may often want to discipline employees for the purpose of deterrence and education. But how does the employer determine whether it has the right to discipline employees or not? If so, what disciplinary measures will be applied, and what are the legal consequences if the employer violates the law? This article will provide evaluation opinions so enterprises will have a more careful perspective before deciding to discipline employees. 

Managing labor discipline when employees commit violations during the training period abroad
Managing labor discipline when employees commit violations during the training period abroad

1. The basis for asserting the right to discipline employees  

The right to discipline employees will arise when the employee and the employer have an employment relationship through establishment of a labor contract. The violating behavior of the employee must be specified in the labor regulations or not permitted in the signed labor contract, or the labor law or signed contract does not provide for it but the employer can prove the employee is at fault. Finally, the statute of limitations for employee discipline must still be valid, and the employer must issue a decision on the disciplinary action within the prescribed time limit. 

The process of employers sending employees to train and improve professional qualifications and skills abroad is governed by the Labor Code 2019, and is also governed by the Law on Vietnamese Employees Working Abroad Under Contract 2020 (“Law 2020”). Requirements for eligibility of Vietnamese enterprises sending Vietnamese employees abroad for training, improvement, and enhancement are specified as follows:

1. Having contracts for receiving intern employees with overseas intern receivers to bring Vietnamese employees abroad for training, improvement and enhancement conforming to Article 37 of this Law and approved by competent authorities specified under Article 39 of this Law.  

2. Having deposit payments for execution of the contracts for receiving intern employees as prescribed by the Government. 

3. Bringing only employees who are under overseas employment contracts and vocational training contracts for training, improvement and enhancement at overseas intern receivers according to the contracts for receiving intern employees. 

4. Professions and careers for which Vietnamese employees are sent to for training, improvement and enhancement must conform to fields of operation of enterprises.

From the above provision, we can tentatively draw two conclusions as follows: 

1. Except for the case where the employee signs a labor contract directly with the foreign employer, the Vietnamese enterprise does not have the right to send the Vietnamese employee to work abroad under the contract in all cases, but only in one of the forms specified in Article 5 of the Law 2020. 

2. It is necessary to establish at least two types of contracts to send employees abroad to work in the form of training, improving qualifications and skills, that is (i) labor contract for internship9 and (ii) contract for vocational training abroad. Details of these contracts are as follows: 

(i) Contracts for receiving intern employees are written agreements between Vietnamese enterprises with overseas intern receivers on rights and obligations of parties in providing, receiving employees of enterprises for overseas training, improvement, and enhancement. Contracts for receiving intern employees must contain the following contents: 

  • Internship period;
  • Number of employees; field of operation; age of employees;
  • Intern locations;
  • Intern conditions and environment;
  • Working hours, break time;
  • Occupational safety and hygiene;
  • Salary, wages;
  • Living conditions, travel conditions;
  • Medical examination and treatment;
  • Social insurance, health insurance, occupational accident and disease insurance, other insurances (if applicable);
  • Conditions for premature contract termination and responsibilities for paying damages;
  • Responsibilities to pay travel costs from Vietnam to work place and vice versa;
  • Responsibilities of parties when employees face risks during internship period;
  • Responsibilities of parties in dealing with arising issues for employees during internship period;
  • Mechanisms, procedures and regulations and law on solving conflicts;
  • Other agreements that do not contradict regulations, law, and social morals. 

(ii) Contracts for overseas vocational training are written agreements between Vietnamese enterprises and their employees regarding craft training, improvement and enhancement abroad. Contracts for overseas vocational training must satisfy the Labor Code and conform to contracts for receiving intern employees. A vocational training contract can be understood as a training contract according to the provisions of Article 62 of the Labor Code 2019. A vocational training contract must contain the following principal contents.

  • The period in which occupational training is provided; 
  • Location, time of training and salary for the training period;
  • The work commitment period after training;
  • The training costs and responsibility for reimbursement thereof;
  • Responsibilities of the employer;
  • Responsibilities of the employee. 

Based on the grounds that give rise to the right to discipline employees and the nature of the training contract and the purpose of sending the employee abroad, it is difficult for the employer to prove that the employer has the right to discipline the employee, due to these factors:  

+ Violation of the labor contract is the most important legal basis prescribed in the labor regulations for employee disciplinary measures, including reprimand, deferment of salary increase, discharge, or dismissal. The law provides that the employee must be working under a labor contract to be subject to discipline. However, in the case of sending employees for training, the employees are studying and improving skills abroad under the training contract, not working under the labor contract. 

+ Even if the employer argues that the employee’s training is also the performance of the job specified in the labor contract, this is not easy to prove, because the nature and scope of the work that employees must perform under the labor contract and the training contract is very different. Violations also do not occur at the workplace that the employer and employee have agreed upon. In this situation, if the “workplace” is explained as an overseas location, it may be considered that the employer sends employees abroad to work. However, this is likely to increase the risk of the employer being seen as sending employees abroad to work or to export labor illegally.  

From the above analysis, violations by employees may or may not be disciplined according to the provisions of the training contract. However, the disciplinary action against employees when there is a violation during the training period abroad is likely to be risky for the employer. 

2. What are the legal consequences if the disciplinary action is deemed illegal? 

The legal consequences will be different depending on the type of disciplinary action applied. Usually, the employer will have to cancel the disciplinary decision and restore the employee’s benefits (if applicable). In the case that the employer wrongfully dismisses the employee, based on the provisions of Article 73 of Decree 145/2020/ND-CP, the employer may have to perform several obligations as follows:  

Case 1: If the employer accepts the employee’s return to work under the previously signed labor contract, the employer must pay the employee the following amounts: 

  1. Wages, social insurance, health insurance, and unemployment insurance for the days when the employee was unable to work;
  2. A sum of money equal to at least 2 months’ wages as stipulated in the labor contract.
  3. A sum of money corresponding to the wages as per the contract for the days without prior notice in case of violation of the prescribed notice period (if applicable). 

Case 2: If the employee does not wish to continue working, the employer must pay the employee the following amounts: 

  1. The amounts mentioned in Case 1.
  2. Severance allowance. 

Case 3: If the employer does not wish to rehire the employee and the employee agrees, the employer must pay the employee the following amounts:  

  1. The amounts mentioned in Case 1.
  2. Severance allowance.
  3. A sum of money equal to at least 2 months’ wages as stipulated in the labor contract. 

 


Disclaimers:

This article is for general information purposes only and is not intended to provide any legal advice for any particular case. The legal provisions referenced in the content are in effect at the time of publication but may have expired at the time you read the content. We therefore advise that you always consult a professional consultant before applying any content.

For issues related to the content or intellectual property rights of the article, please email cs@apolatlegal.vn.

Apolat Legal is a law firm in Vietnam with experience and capacity to provide consulting services related to Employment and contact our team of lawyers in Vietnam via email info@apolatlegal.com.

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